Appellate Advocacy Blog

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

Thursday, August 6, 2020

Appellate Review of Video Evidence

This is a post by the Hon. Pierre H. Bergeron, a judge on the Ohio First District Court of Appeals.  Judge Bergeron will be joining us as a regular blogger.

We live in an era of instant replay.  Every sports fan, when witnessing a close play in a game, reflexively thinks, “I wonder what the replay will show?”  In our instant replay culture, with video coverage of almost every move we make, this begs the question of what standard of review should appellate courts use when assessing video evidence.  In days gone by, several witnesses might have testified at trial as to what they saw when the crime occurred, and appellate courts rightly deferred to the jury or trial judge in their assessment of credibility of these witnesses.  But now, in many cases, we have video evidence of the crime (or other critical events) that we can watch.  As video evidence becomes an almost indispensable element of the modern trial, what does that mean for the modern appeal?   

Some appellate courts apply a deferential standard of review to the trial court’s findings, rooted in how appellate courts historically have reviewed evidentiary matters, whereas other courts gravitate towards de novo review, as a pragmatic response to the power of video evidence.  I would submit, though, that, more often than not, many courts do not squarely acknowledge the standard of review on this point and probably (maybe reflexively) default to a Potter Stewart-esque “know it when you see it” perspective.  The debate on this point is real and legitimate but it is important to have it in the open.  Our appellate courts should be asking the question of how should we review video evidence. 

Courts applying deferential review generally do so on grounds that largely mimic accepted justifications for deferential review of a trial court’s credibility and factual determinations generally.  Because video-recorded evidence may be susceptible to varying interpretations, reviewing courts typically highlight the trial court’s unique vantage point for resolving these conflicts. Courts also justify deferential review because it preserves a trial court’s role within the judicial system as the factfinder. Finally, appellate courts remain leery about the danger of making litigants essentially retry issues on appeal, needlessly squandering judicial time and resources.  State v. S.S., 162 A.3d 1058, 1060 (N.J. 2017); Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).

By contrast, when selecting de novo review over a more deferential approach, appellate courts begin their analysis with a cautionary tale about providing deference to a trial court’s factual determinations. Trailing closely behind this point is usually a caveat: when the appellate court sits in a similar position to review the content or significance of video evidence as the trial court below, the appellate court may independently evaluate that evidence under de novo review. Now what appellate courts deem a “similar” position is up for debate, but ordinarily courts consider whether the trial court primarily relied upon the video evidence, whether controlling facts contained within the video are in dispute, and the thoroughness of the trial court’s factual findings (some cases without factual findings pave the way for de novo review).  See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

I know there are at least a couple of cases during my tenure as an appellate judge when the video evidence swayed me from affirm to reverse (or vice versa).  In these instances, the power of the video evidence was simply impossible to ignore, regardless of what standard of review governed. Even the staunchest supporters of deferential review would probably have allowed for such meddling with the trial results when the video paints a decisive picture.  Powerful policy justifications certainly animate both sides of this debate.  And, overall, there is some need for flexibility here.  The important take-away is that, whatever side of this debate you prefer, courts need to be candid about this standard of review point.  After all, the standard of review in a lot of these cases can prove dispositive. The parties need to understand what they have to work with, and the trial courts likewise need to internalize what is being asked of them (for example, if the appellate court faults the trial court for a lack of findings).  I look forward to seeing this debate unfold, and to potential new and innovative ways to approach this evidence that is becoming prevalent in the modern appeal.

August 6, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

  • The Supreme Court refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

August 1, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, July 25, 2020

Using Peer Review for LRW Teaching and in Appellate Practice Too:  Peerceptiv and Eli Review

Tired of seeing yet another post on how to ______ [fill in the blank:  teach, write, argue, live] in our new virtual reality?  Exhausted from never leaving your home and Zooming all day?  Me too. 

In fact, I was reluctant to write one more blog on online writing tools.  However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom:  Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/.  These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others.  They also reminded me how much any law practice can increase attorney writing skills by using peer review.  See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011)   https://eric.ed.gov/?id=EJ933615

As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners.  While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice.  When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer.  Eli Review has a nice blog post on this “giver’s gain.”  https://elireview.com/2017/03/28/givers-gain/

My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors.  Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation.  However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work.  This review can actually save fees, by shortening partner review time, and can help create better briefs across the board.  And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.

In the digital classroom, we can use technology to enhance the peer review process.  Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community.  Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo.  Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.

From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment.  Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades.  The whole process can be anonymous.  Professors using these programs raved about the technical support and positive student feedback from both.  Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year. 

The genius in each product is the science and math behind the assessment scores and review prompts.  Each product truly helps students grow as writers by combining the established science on peer review and some neat online features.  The math and engineering majors in my home called the programs “elegant.”

For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review.  Then, each student grades the reviews he or she received on a 1-7 scale.  Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score.  The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review.  Peerceptiv docs points when a review or assignment is late.  See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.

If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review.  Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments.  Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars.  See https://elireview.com/learn/how/.  This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work. 

This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring.  I plan to use Eli Review only for anonymous, ungraded work.  My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems. 

Thanks for reading another note on online writing tools.  I wish you all good health, and a safe  trip outside sometime soon too. 

July 25, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)

Saturday, July 18, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 18, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

  • The Supreme Court’s vacatur of preliminary injunctions this week allowed the executions of three federal inmates and ended the 17-year hiatus from federal executions. Justice Breyer (joined by Justice Ginsburg) and Justice Sotomayor (joined by Justices Breyer, Kagan, and Ginsburg) each wrote dissents in both. See the orders here and here and reports in The New York Times, The Wall Street Journal, and The Associated Press.

  • The Supreme Court upheld the stay of a trial judge’s order finding unconstitutional Florida’s restriction on the voting rights of people with felony convictions who are unable to pay fees and fines, thus allowing the restrictions to continue. The restrictions limit a 2018 amendment to the Florida Constitution that sought to end the disenfranchisement of people convicted of felonies, except for murder and rape, “upon completion of all terms of sentence, including parole or probation.” Justice Sotomayor’s dissent recognizes that the “order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” See the opinion and reports in The New York Times, The Washington Post, The Associated Press, and Reuters.

  • This week, Justice Ruth Bader Ginsberg announced the recurrence of her cancer, stating that chemotherapy is yielding “positive results” and that she has no plans to step down.  See the statement and reports from The New York Times and Reuters.   

Federal Appellate Court Opinions and News

  • The District of Maryland suspended a rule requiring an in-person doctor’s visit to get medication for a medical abortion, stating that, during Covid-19, the requirement likely violated the constitution as a substantial obstacle” to obtaining an abortion.  See reports from PBS, The Hill, Forbes, and Time.

  • The Ninth Circuit upheld a Montana court’s decision to reinstate the protections for the grizzly bear population in the Yellowstone area.  In 2007 and 2017, the Fish and Wildlife Service attempted to remove the grizzly from protection under the Endangered Species Act. See the opinion and reports from the Jurist and Bloomberg Law.

  • The Northern District of Georgia permanently struck the state’s anti-abortion law, which banned abortion after detection of a fetal heartbeat. The opinion ruled that the law constituted a “pre-viability abortion ban” and thus violated the right to obtain an abortion.   See the opinion and reports from Time and the Atlanta-Journal Constitution.

July 18, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, July 8, 2020

The National Association of Legal Advocacy Educators

For the past couple of years, members of the law school advocacy community have worked to create an organization that represents the interests of legal advocacy educators. It's almost here. We have a name: the National Association of Legal Advocacy Educators. We have bylaws. And soon, we'll have officers.

Hence this post. To move things forward, the organization will launch elections this week for its inaugural executive board and regional representatives. Anyone who is interested in and eligible to become a member of NALAE may vote. And membership is open to anyone who is currently an advocacy teacher at the law school level. As the bylaws state, that definition is broad: "an 'advocacy teacher' is any person who is engaged in teaching trial advocacy, appellate advocacy, alternative dispute resolution, client counseling, or any other skills related to litigation and trials, at the law school level. This definition includes tenurial, tenure-track, non-tenurial, and adjunct professors as well as those who coach law school teams that compete in these fields."

If you're currently an advocacy teacher at the law school level and you'd like to vote, please register via this link as soon as you can. When you access the registration form, you can check out answers to frequently asked questions about the organization and elections. NALAE's Election Committee will host an online candidates' forum tomorrow (Thursday, July 9) at 7:00 pm, and we'll send a link to Zoom event to all registered voters. 

I am excited to see this organization come together, particularly now. This summer, the national communities of appellate advocacy, trial advocacy, and dispute resolution teachers, coaches, and competition organizers have worked hard to respond to the challenges our students face in learning and competing virtually. We're seeing what's possible when we collaborate. NALAE will help our communities realize a broad, deep range of possibilities. The organization's goals:

a. To encourage the expansion and improvement of and diversity in student-focused law school advocacy skills education;

b. To support innovation through communication and dissemination of information among law school advocacy programs;

c. To improve the quality of competition experiences to best teach skills and professionalism;

d. To work cooperatively with other organizations interested in advocacy skills education, the improvement of legal education, and the improvement of client representation;

e. To promote conferences and other educational activities designed to facilitate the other purposes of the organization;

f. To further the interests of all law school advocacy skills teachers; and

g. To promote access to justice, including the right to jury trials, fair and equitable dispute resolution, and the rule of law.

July 8, 2020 in Appellate Advocacy, Law School, Moot Court | Permalink | Comments (0)

Tuesday, July 7, 2020

Briefing Beyond Words - by Mark Trachtenberg

Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.

I.     Introduction

    For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.

II.    How to use visuals effectively.

    To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.

    From my survey, I have identified a few overarching lessons about effective use of visuals.

    First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.

    Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.

    Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.

    Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.

Samsung 2

    Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.

Chart 2

    Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.

    In this paper and powerpoint, I highlight examples of effective visuals from each designated category and offer some thoughts about in which contexts they might be most helpful.

III.    The future of visuals

    While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.

    Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link.[1] But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.

    Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be.[2] One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”[3]

Another scholar speculates that other embedded technology in briefs might include, among other things:

  • Graphics Interchange Format, or GIFS;
  • 360-degree panoramas (of accident scenes, etc.);
  • Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
  • Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.[4]

    As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.[5]

    If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,”[6] podcast links, and even virtual reality experiences.

    For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you![7]

 

[1] See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.

[2] See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.

[3] Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).

[4] See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).

[5] Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).

[6] Id. at 1693.

[7] See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

Blog 5
Blog 5

July 7, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, July 6, 2020

Another Great Statutory Interpretation Case out of Washington State

Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit.  The question--Does "and" mean "and" or does it mean "or?"  At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.

The history of the case is rather complicated, but the key provision is quite simple.  At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation.  Paragraph two of the Proclamation stated (my emphasis):

Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.

In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department  to make that clear when it accepted the Proclamation. It didn't.  Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system.  The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or,"  resting heavily on the usage of "in part" in the first line.

In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and."  Unfortunately for them, the Ninth Circuit didn't agree.  

There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way.  It can, he says, mean "or": 

Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her  to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”

Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example).  Judge Nelson goes on to explain,

The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those  sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.

Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”

Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation.  It seems like that would have saved everyone a lot of trouble.

Regardless, let this be a lesson for drafters of statutes and Proclamations.  Have a happy Monday AND (and I do mean AND) a good week.

July 6, 2020 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Humor, Tribal Law and Appeals | Permalink | Comments (1)

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 27, 2020

Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online:  Preparation and Professionalism

 In March, we had only hours to transition from in-person teaching and law practice to remote options.  As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms.  Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work.  I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online.  (If you could not attend, you can view asynchronous postings here:  https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.)  Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend. 

Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.”  The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward.  As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.”  Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020).  Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances.  In other words, be prepared and yes, wear pants.

Part of our preparation for oral argument today should include a test run of our technology.  Whenever possible, appellate practitioners should do moot courts before oral arguments.  Now, we should make our moot courts a test of both online systems and legal arguments.  Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms.  Id.  They expect us to be familiar with the platforms as well.  In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation. 

We should also be as professional as possible in every detail of our online appearances.  Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance.  The ABA panel stressed smaller points as well.  For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking.  Id. at 2.  Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level.  The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument.  Id.   Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking.  Id.  Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.  

We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves.  For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.”  Id. at 3.  Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.   

June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Sunday, June 21, 2020

The Nature of Judging at the United States Supreme Court

This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California ­– that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity.[1] In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex.[2] In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.[3]

The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.

So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”[4]

Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.

I.    Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts

The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.

Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.[5]

But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision.[6] And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage.[7] Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.

Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.

II.    Ideology matters – for conservative and liberal justices

For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.

However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.

Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.

III.    Bias matters – for both liberal and conservative justices

Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women.[8] In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.”[9] Additionally, African-American defendants often receive harsher sentences than white defendants.[10] As one scholar explains:

[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.[11]

Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.”[12] In so doing, the potential for reaching an improper result increase substantially.

IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”

Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.”[13] As researchers explain:

[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.[14]

Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.

V.    Intuition matters

Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.”[15] As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.”[16] In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.

***

Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.

 

[1] See 590 U.S. ___ , 2020 WL 3146686.

[2] See id.

[3] See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.

[4] Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.

[5] 567 U.S. 519 (2012).

[6] 570 U.S. 529 (2013).

[7] 576 U.S. 644 (2015).

[8] See id.

[9] Id. at 28 (internal citation omitted).

[10] Id. at 29.

[11] Id. at 32.

[12] Id. at 16.

[13] Id. at 24.

[14] Id. at 27.

[15] Id. at 14.

[16] Id. at 21.

June 21, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 20, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 20, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

  • Earlier this week, the Supreme Court in a 6-3 decision ruled that the plain language of the Civil Rights Act of 1964 applies to discrimination based on both sexual orientation and gender identity. Widely seen as a landmark decision, the ruling applied textualist principles and found that the plain language unambiguously protects gay, lesbian, and transgender employees because decisions discriminating for those reasons are—at their core—decisions discriminating because of sex. The opinion recognizes that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.”  See the opinion and a sampling of the many reports from NPR, The New York Times, The Washington Post, and Bloomberg Law.
  • On Thursday, in another much-anticipated case, the Court ruled 5-4 that the administration’s attempt to end DACA is impermissible. Justice Roberts writes, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ [citation omitted.] We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” See the opinion and a sampling of the many reports including from The New York Times, CNN, NBC News, and NPR.  

Federal Appellate Court Opinions and News

  • Last week, the Fourth Circuit invoked the murder of George Floyd in its opinion reversing a lower court and refusing to apply qualified immunity to dismiss a lawsuit again police officers who shot a black American 22 times after the victim had been subdued. The opinion found that if the victim “was secured, then police officers could not constitutionally release him, back away, and shoot him. To do so violated [his] constitutional right to be free from deadly force under clearly established law." The opinion also states that, “[a]lthough we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.” See the opinion and reports from CNN, The Washington Post, and The National Law Journal.
  • Today, a federal court denied an emergency request from the Justice department block former national security adviser John Bolton's book from being published. The court held that, “while Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy.” See reports from The Hill, CNN, and NPR (find order at NPR link).   

June 20, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, June 12, 2020

Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice

Like so many of us, I have spent the last few months worrying.  I have been very worried about my law students’ physical and mental well-being.  As a parent, I’m losing sleep over concerns for my high-school and college-aged children.  But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country. 

As a teen, I loved the statement, “if you want peace, work for justice.”  I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense.  See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996).  To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching. 

As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well.  While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients.  Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias.  See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).   We too should advocate for professionalism, and against bias, in our practice.  Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.

Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work.  In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis.  In fact, we already stress important topics of professionalism in myriad ways.  For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs.  Additionally, I used problems on curing attorney errors for my trial brief problems for years.  Now, we can include cases leading to discussions of bias as well.  Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice.  Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills.  I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach. 

As Ronald Smith said of working for justice to bring peace:  “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.”   Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.

I wish you all good health and less worry, with hopes for a more just future.

June 12, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Religion | Permalink | Comments (0)

Monday, June 8, 2020

Practice in Place: My Interview with David Lat

Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian.  Today I am sharing an interview that I did recently with David Lat.  David is the founding editor of the popular blog Above the Law.  He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19.  He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background.  Thanks David for joining me for the interview!

Edited: Sorry about the video issues, I think that it is fixed.

 

 

 

 






 

 

 

June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 6, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 6, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

In a 5-4 decision with Justice Roberts as the swing vote, the Supreme Court rejected an emergency appeal by a California church that challenged Covid-19 related restrictions on attendance at worship services. The church argued that the state guidelines limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees violate constitutional guarantees of religious freedom. Justice Roberts concurred in the denial and wrote that the “restrictions appear consistent with the Free Exercise Clause of the First Amendment” and that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.” (Internal quotes and citations omitted.) See opinion and a sampling of the many reports from The New York Times, The Washington Times, The Associated Press, Reuters,

Federal Appellate Court Opinions and News

The District Court for the District of Arizona ruled that a same-sex spouse cannot be denied Social Security survivor benefits for failure to meet the marriage duration requirement without consideration of whether the marriage was prohibited by unconstitutional laws barring same-sex marriage. For a surviving spouse to receive Social Security benefits, the couple must have been married for “a period of not less than nine months.” (42 U.S.C. 416(g).). The SSA argued that the provision was neutral because it applied equally to all seeking benefits. The court rejected that claim because same sex couples have been impacted by law prohibiting their marriages, which affects their ability to meet the marriage duration requirement.  The opinion recognizes that, “[b]ecause same-sex marriage is a fundamental right, and the underpinnings of the duration-of-marriage requirement has relied on the unconstitutional ban of that right, [the regulation] cannot be said to be rationally related to a legitimate interest to a surviving spouse.” See ruling and case summary and reports from Slate and NBCNews.

State Court Opinions and News

The nine justices of the Washington Supreme Court, in an extraordinary step, penned an open letter to the legal community addressing racial injustice. The letter recognizes the role of the judiciary and the legal community in the continuing injustices against black Americans. From the letter:  

Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.

The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. . . .

As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong—but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.

See the full letter and reports from The National Law Journal, Law.360, and The Tacoma News Tribune.

June 6, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 31, 2020

The Writing Process – Drafting, Rewriting, and Revising

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

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

I.    The Drafting Stage

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

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

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

II.    The Rewriting Stage

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

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

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

III.       The Revision Stage

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

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

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

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

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

Saturday, May 23, 2020

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

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

I.    The Court’s Decision

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

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

II.    Analysis

The Court got it wrong.

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

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

Justice Breyer explained as follows:

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

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

III.       Broader Problems With the Insanity Defense

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

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

IV.    Reforms

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

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

 

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

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

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

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

 

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

Friday, May 22, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 22, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

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

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

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

Federal Appellate Court Opinions and News

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

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

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

State Court Opinions and News

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

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

Wednesday, May 13, 2020

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

 

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

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

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

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

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

Monday, May 11, 2020

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

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

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

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

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

Friday, May 8, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

6a00d8341bfae553ef01b8d274d5bd970c-pi (960×720)

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

US Supreme Court Opinions and News

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

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

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

Federal Appellate Court Opinions and News

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

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

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

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

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