Appellate Advocacy Blog

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

Monday, April 12, 2021

Yes, Persuasive Writing Skills Can Help You in Real Life

I "won" a major appeal this week.  It wasn't in the courtroom, and it wasn't exactly a victory.  Rather, after about two months of back and forth, my employer directed my health insurance company to cover two months of my daughter's specialized amino-acid formula. This "victory" came after I wrote, to paraphrase the representative for the insurance company, a "really good appeal." I laughed when he said this and replied, "Well, my job is to teach law students to write persuasive appeals."  But, in reality, as I sat down late one night to write the appeal, I did think about principles I taught my students.  I wanted to share that here, but first a little backstory.

Both of my kids have needed to be on amino-acid based infant formula for a milk/soy protein intolerance. The formula is very expensive--a small can costs over $40 and lasts us less than 3 days (assuming no waste).  The formula is also hard to find--it isn't available in most stores, although some Walgreens carry it.  We have had it delivered through a medical supply company. My husband and I are both state employees, and we have the choice of two companies for health insurance. For several years we were on one company, and they covered the formula for both kids with no problem. This year we had to switch companies due to a major restructuring of the state plans.  Our kids see several specialists, and the new insurance company covered them better. 

Of course, I didn't even think about the formula in making the switch. Well, the new company decided to not cover it. Among its many arguments were: (1) the formula is a plan exclusion and (2) it is standard infant formula and over the counter. We appealed the denial, and after claiming for about a week that they didn't receive the appeal and then initially refusing to expediate the appeal (I mean, it isn't like its her FOOD or anything), they finally denied the appeal.  I got the appeal letter right around 5pm on Wednesday night, and I was livid when I read it. The letter said that I could appeal the appeal, and provided a fax number for me to send it to.  I wanted to sit down immediately and type a multi-page diatribe against the company, but cooler heads prevailed (or rather, I needed to get the kids to bed before I had time to type).

When I finally had time to type, I kept three key principles that I teach my students in mind: (1) Lead from strength, (2) Be clear and organized, (3) Use strong persuasion not abusive language.

(1) Lead from strength--My best argument on appeal was that the insurance company in its denial letter misstated my daughter's diagnosis.  The letter didn't list her milk protein intolerance, which was odd, since that is the diagnosis that requires her to have her formula.  So, my first point in the appeal pointed to that misdiagnosis. I provided copies of her medical records stating her correct diagnosis, and I carefully listed her diagnoses in the letter, pointing out the incorrect language that the insurance company used.  Similarly, in writing an appeal, start with your strongest argument, unless there is a threshold issue that you need to address like standing or jurisdiction. You want to put your best argument first, since that is your best opportunity to draw your reader (the judge!) in.  Likewise, be sure to set out your affirmative argument first. Don't come out as too reactionary to either the adverse decision below or your opponent's brief. Of course you need to rebut some arguments, but set out your affirmative case first--showing how the law is in your place.

(2) Be clear and organized--I divided my appeal into three main arguments--the misdiagnosis, the mischaracterization of the formula as standard infant formula, and the failure to explain the plan exclusions.  I set out these three points in my introductory paragraph and then used headings to set apart each argument. It was easy for the reader to follow.  Likewise, clarity and organization are critical in an appellate brief.  If there is one thing that judges almost universally agree upon it is that briefs are too long. Clarity and organization can keep the length of your brief on track, for example by avoiding unnecessary repetition. It can also help a judge follow your argument.  I always tell my students that your point headings should serve as an outline for your brief.

(3) Use strong persuasion not abusive language--I will be honest. I struggled with this point. I used stronger language than I would recommend in a brief, but I also toned down some of my writing as I went along as I thought about this principle. My most strident language was calling their characterization of the formula as "over-the-counter" as "simply false."  By the time I had written the appeal, I had also written several emails to the appeals unit, and some of those were a little harsh. I was frustrated at the amount of time I was spending on the matter and the specious arguments being raised by the insurance company. I also was annoyed because I felt that the company was just trying to delay until my daughter turned one and she could try a milk substitute. Finally, I was frustrated for all the parents of kids who have had to deal with this issue and who might not be lawyers or feel comfortable with the appeals process. These parents might also truly not be able to afford $500-$1000 a month on formula (on top of all the specialist doctor visits). My frustration definitely leaked into my written letters and emails. BUT, in general, you should not take cheap (or expensive) shots at the judge below or opposing counsel in your appellate briefs.  Be persuasive, but don't call names. Sure, you can show how the judge made a legal error or how opposing counsel's case is inapposite, but you don't need to call them liars, lazy, manipulative, or state that they "ignored the law."  Furthermore, rather than saying the law "clearly" supports you, focus on showing how the law clearly supports you.  Strong persuasion is always better than strong words.

I hope that these little tips help you in whatever type of appeal that you are writing.

April 12, 2021 in Appellate Advocacy, Current Affairs, Food and Drink | Permalink | Comments (0)

Sunday, March 28, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, March 28, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court ruled that victims of police shooting may pursue a claim for excessive force under the Fourth Amendment even if the victim is not actually detained at the time of the shooting. The Court held that a “seizure”  occurs the " instant that the bullets str[ike] [the victim]," explaining that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” See the order and reports from The New York Times, Reuters, and the Associated Press

  • The Justices met live for the first time since the pandemic shutdowns, which began over a year ago.  See reports from NBCNews and Bloomberg.

State Appellate Court Opinions and News

  • Interpreting Minnesota law, the Minnesota Supreme Court found a victim of rape in Minnesota cannot claim to have been mentally incapacitated and thus unable to consent if she voluntarily consumed alcohol. The court granted a new trial to a man previously convicted of assaulting an intoxicated woman. The Minnesota statute defines “mentally incapacitated” as when “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement, lacks the judgment to give a reasoned consent to sexual contact or sexual penetration.” (emphasis supplied.) The court considered whether “administered to that person without the person’s agreement” applied to all items on the list, including alcohol, and found that it did. The court deferred to the legislature saying: “[i}f the Legislature intended for the definition of mentally incapacitated to include voluntarily intoxicated persons, ‘it is the Legislature’s prerogative to reexamine the . . . statute and amend it accordingly.’” See the order here and reports from The Minneapolis Star Tribune and CBSNews.

  • The California Supreme Court has reformed the CA cash bail system ruling that “[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.” The ruling identifies other means of monitoring that can meet the goals of cash bail, including for example, electronic monitoring, mandatory check-ins, or stays at community housing facilities, and holds that “where a financial condition is nonetheless necessary, the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” See the order here and reports from The Associate Press, The Los Angeles Times, and The Courthouse News.

March 28, 2021 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, March 13, 2021

Illinois Follows Nebraska’s Lead in Pairing Law Student Research Fellows and Pro Bono Attorneys

As all appellate practitioners know, legal research takes a great deal of practice.  Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience.  Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters.  Illinois has a new program to connect law student researchers and pro bono attorneys.  

The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services.  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/.  As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.”  Id.  The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice.  Id.  The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.”  Id.

PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.”  https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/  Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).”  Id.  Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance. 

Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.”  Penelope Bremmer,  PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).

Illinois modeled its Alliance on the similar University of Nebraska College of Law program.  See https://law.unl.edu/ProBonoResearch/.  Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “  Id.  Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law.  Id. 

Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].”   See id.  Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.

March 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, February 28, 2021

Tips for Delivering A Persuasive Closing Statement

Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.

Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.

Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.

Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?

Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.

Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.

Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.

Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.

End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.

Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor.  Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.

February 28, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Oral Argument | Permalink | Comments (0)

Tuesday, February 23, 2021

Overprepare. Don't Over-Rehearse.

As the calendar turns to February, the stress of moot court teams preparing for their competitions is palpable in law schools around the country. Students spend countless hours in practices to ensure they are ready on the day of the competition. Often, they spend countless additional hours wallowing in self-doubt over their preparation. Did I do enough to get ready? Have I structured my argument in the most persuasive manor possible? Is practicing more better for me, or should I relax and try to get some rest before the big day?

To those nervous advocates, I offer a simple mantra. Overprepare. Don’t over-rehearse.

By overprepare, I mean that advocates should always strive to be ready for the competition as early as possible. Moot court practice is often psychologically painful. Early practices are invariably embarrassing, as a guest judge is almost certain to ask a question the advocates never considered, catching them flat-footed as they grasp for an answer. But this experience need not feel embarrassing. In fact, it’s the whole point. Practice should expose advocates to as many views of the case as possible, allowing them to feel comfortable that, on the day of the argument, there’s nothing truly unexpected that any questioner can throw at them. The early stumbles are necessary signs of growth. And the earlier they occur, the more likely advocates will be able to adjust their presentation and prepare themselves to answer the difficult questions. Those stressful moments expose the gaps in logic that must be resolved before making an effective argument. Advocates should overprepare by starting early, soliciting challenging views whenever possible, and testing out a litany of analytical approaches while staying in character to see what feels most natural, candid, and convincing.

But advocates should not over-rehearse. There is a fine line between learning how to explain the nuances of the problem and the logical gaps of one’s position and memorizing a stilted script to present to a new group of judges. Advocates must avoid the temptation to generate precisely-phrased responses to each possible question. Often, this leads advocates to fall back on a script during argument. That script builds a wall between the advocate and their audience. It forces the advocate to offer stock, generalized answers to judges’ questions, rather than internalizing the questions, processing their nuances, and offering genuine, original responses that fully addresses the judges’ concerns.

One method to overprepare without over-rehearsing is to catalogue some of the most difficult questions faced in practices, jot them down in a deck of note cards, then mix the deck and practice responding to the questions in random order—no matter where they fall in a planned outline of the issues. This will force advocates to provide original responses to the questions in order to weave their presentation back into the original argument structure. Rather than generating canned responses, the advocate will deepen their neural network around the problem, recognizing the relationships between issues and concepts and learning to tack between them smoothly. That mental pliability is a learned skill, not an innate talent. It takes a great deal of preparation, but it can be mastered by anyone willing to put in the necessary effort. And it cannot be reduced to a scripted series of rehearsed answers.

Advocates often work harder in moot court preparation than they have in almost any other aspect of law school. But concerns about perfection can lead them to work in counter-productive ways. A perfectly-scripted answer is not the goal. Instead, advocates must aim to deepen their understanding of each issue so they can comfortably respond in unique ways to each uniquely nuanced question they face. Overpreparation with that goal in mind, while avoiding over-rehearsing, will lead to an argument performance that will make any nagging moot court coach proud.

February 23, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Saturday, February 13, 2021

Tips for Delivering A Persuasive Opening Statement

Opening statements are among the most critical aspects of a trial. Indeed, the opening statement provides attorneys with the opportunity to, among other things, make an excellent first impression with the jury, highlight the most favorable facts supporting an attorney's argument, and establish trust and credibility with the jury. Below are tips to maximize the persuasive value of an opening statement. 

Begin with a theme. First impressions are critically important, whether it is at a trial, in an interview, or during an audition. For that reason, it is vital to start strong when delivering your opening statement. A powerful beginning, among other things, gets the jury’s attention and establishes your credibility immediately. To ensure that you deliver a persuasive and powerful opening, begin with a theme. A theme is a concise, one-sentence statement that explains what the case is about and, more importantly, why the jury should rule in your favor.

Tell a story. It is critical to tell a compelling and enjoyable story that has a beginning, a middle, and an end. The story should include vivid details and powerful language concerning, among other things, the characters in your story (e.g., the plaintiff and defendant), and the atmosphere within which the events in question occurred. A compelling story helps to personalize your client, enables the jury to visualize (and thus relate to) the relevant events, and enhances your statement’s emotional impact.

Use the Rule of Three. The best opening statements are well-organized and cohesive. One of the best ways to ensure that your opening statement is structured effectively is to use the Rule of Three. Simply put, the Rule of Three provides the jury with three distinct reasons that support a verdict in your favor – and maximizes the persuasive value of your statement. As one commentator explains:

We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there.[1]

In essence, the Rule of Three “creates simplicity, aids recall and makes your job easier.”[2]

Use demonstrative exhibits. During opening statements, demonstrative exhibits can often be a powerful tool to convey important facts and evidence to the jury in a well-structured, clear, and concise manner. Indeed, such exhibits focus the jury’s attention on the strongest facts and evidence supporting your argument, and can make your opening statement more persuasive and engaging, particularly for jurors that prefer visual images to enhance their understanding of the case.

Keep it simple and understandable. Opening statements should always be delivered using simple and easy-to-understand language. Thus, avoid fancy or esoteric words. Eliminate unnecessary legalese. And be sure to explain complex concepts in a clear and straightforward manner. Otherwise, you will likely lose the jury’s attention and fail to communicate your argument persuasively.

Be likeable, relatable, and credible. Likeability is an integral part of persuasive advocacy. Jurors (and judges) will be more inclined to rule in your favor or give you the benefit of the doubt if they like you. To enhance likeability, do not read your opening statement to the jury. Do not use notes. Instead, speak to the jurors in a conversational tone. Make eye contact and engage the jurors. Smile. Be friendly. Do not talk down to the jurors, attack your adversary, or speak in an overtly hostile manner. If the jurors like you, you will gain trust and credibility, both of which are essential to maximizing the persuasive value of your arguments.

Use non-verbal techniques. Non-verbal techniques are an essential part of effective advocacy. Such tecnhniques include, but are not limited to, avoiding speaking in a monotone and overly formalistic way. Instead, vary your tone and pace to emphasize important facts. Show authentic emotion. Use hand gestures and different facial expressions. Do not stand in one place for the entirety of your opening statement. And do not act in any manner that can be perceived as contrived and disingenuous. Effective non-verbal techniques contribute immeasurably to showing the jury that you are a genuine and relatable person -- and increase your openig statement's persuasive impact.

Confront unfavorable facts. Do not avoid facts that are unfavorable to your case. Instead, confront those facts in your opening statement and explain why such facts do not and should not affect the outcome or remedy you seek. If you fail to confront unfavorable facts, you can be certain that your adversary will, and when that happens, your credibility will be undermined substantially.

Avoid including unnecessary or irrelevant facts and explanations. Your opening statement should capture the jury’s attention from the first sentence and keep the jury’s attention until you conclude. To accomplish this, and to maximize persuasive impact, the opening statement must be interesting, engaging, and, at times, captivating. As such, avoid including unnecessary or irrelevant facts and explanations. Make sure that your statement is not too lengthy, unduly repetitive, ineffectively organized, or plain boring. Otherwise, you risk losing the jury’s attention – and your case.

End strong. The end of your opening statement is equally as important as the beginning. Your goal should be to reinforce the theme, maximize emotional impact, and highlight in a memorable way the strongest facts and evidence supporting your argument. Ask yourself, “what is the last and most important thing that I want the jurors to hear before they deliberate?” After all, a poor and unpersuasive ending can affect negatively the manner in which the jurors assess your arguments and, ultimately, diminish significantly your likelihood of success.

 

[1] Paul Luvera, “The Importance of a Trial Theme and the Rule of Three” (Jan. 16, 2011), available at: The immportance [sic] of a trial theme&the rule of three – Plaintiff Trial Lawyer Tips (internal citation omitted).

[2] Id.

February 13, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Appellate Advocacy Blog Weekly Roundup Saturday, February 13, 2021

WeeklyRoundupGraphic

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 let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press

  • The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic.  See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.

  • The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now.  The two arguments concerned funding for the border wall and the “Remain in Mexico” policy.  See reports in Reuters, The Hill, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.

  • The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance.  The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.  

State Appellate Court Opinions and News

  • The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.

Other

  • Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”

February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, February 9, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part II

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the second post in the series.

Do provide a consistent, coherent argument:

  • Do research the applicable law thoroughly.

We have an obligation to the court and to our client to conduct thorough and exhaustive research.  Rule 1.1 of the ABA Model Rules of Professional Conduct says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes an obligation to update our research. Failure to research adequately can cause harm to clients and embarrassment to counsel as demonstrated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).

  • Do investigate the facts diligently.

A corollary to the duty to research the law thoroughly is a duty to thoroughly investigate the facts of the case. The Federal Rules of Civil Procedure state that when an attorney signs a pleading he or she is representing that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]”[2]

  • Do plan and organize your writing.

Outlining saves time. The more time we spend planning and outlining our writing, the less time we spend writing and rewriting. Outlining helps us organize our arguments, see gaps in our reasoning, and see things that can be eliminated. And consider as the first step, using a non-linear outline. This is a technique espoused by Bryan Garner and discussed in his book, Legal Writing in Plain English. To use this technique, the writer starts with a circle in the middle of the page that contains the issue or purpose of the writing. Off of that circle branch sub-issues, facts, authorities, and parts of what might become the final document. Here is an example from Legal Writing in Plain English:

Whirly Bird

The writer then uses this nonlinear outline to create a linear outline. Nonlinear outlining allows the writer to see how various facts and arguments might better fit before committing to a final, linear outline.

  • Do make sure that any legal theory you present is consistent with applicable law.

ABA Model Rule of Professional Conduct 3.1 provides, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” So, as part of our writing process, and along with our duty to thoroughly research the law and investigate the facts, we must ensure our legal theories are consistent with applicable law.

  • Do use persuasive authority.

I have to assume that in this instance the authors of the Dos and Don’ts meant, “Do use binding authority.” We all want to find that magic case that is on “all fours” with our case. In those rare instances when we do, we should cite it. Of course, we all know how infrequently that happens. When we can’t find a case that is binding, then we have to turn to persuasive authority. But not all persuasive authority is created equally. Think about what authority is likely to be more persuasive in your jurisdiction. Ask yourself questions such as, is the jurisdiction that produced the authority in the same geographic region or federal circuit as mine? Has the court relied on authority from this jurisdiction in other cases? How often have courts in other jurisdictions relief on this particular authority?

  • Do state clearly what you are requesting in motions and briefs.

Ask for what you want and consider asking for alternative relief.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] Fed. R. Civ. P. 11(b)(3).

February 9, 2021 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, February 1, 2021

Two Great Articles on Remote Oral Argument

Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online.  There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.  

Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic.  The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret  McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics.  Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.

The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted.  The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court."  We are all truly in this together, and we have persevered.  This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form.  How frequently it will be used in the future remains to be seen.

The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general.  He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation."  He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.

Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.

February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Saturday, January 23, 2021

A New Example of a Persuasive Introduction and Statement of Facts

Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing.  In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques:  (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts.  I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing.  Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words:  “Tonya Harding skates.”   

Of course, I am always looking for new samples.  Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter.  In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts.  See AWS Opp. to Parler's TRO Request.  The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.

Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:

This case is not about suppressing speech or stifling viewpoints.  It is not about a conspiracy to restrain trade.  Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. 

Id. at 2.  The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.”  Id.

The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument.  As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief.  See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”).  The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:

  1. Parler Conducts the “Absolute Minimum” of Content Moderation.
  2. Parler Enters an Agreement with AWS for Web Hosting Services.
  3. Parler Repeatedly Violates the Agreement.
  4. AWS Exercises Its Right to Suspend Parler’s Account.

AWS Opp. to Parler's TRO Request at 2-5. 

Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision.  It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader.  While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story.  For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives.  The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’”  Id. at 2-3.  This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.

As appellate practitioners and writing teachers, we all benefit from reading each others’ work.  I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing. 

January 23, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, January 16, 2021

It’s Time to Address the Death Penalty's Constitutionality

It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.

Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong.  Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.

The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.

The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed.[1] Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen.[2] Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants.[3] And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.[4]

However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed.[5] Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.

Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months.[6] In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.

After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.

Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”[7]

 

[1] 408 U.S. 238 (1972).

[2] 543 U.S. 551 (2005).

[3] 536 U.S. 304 (2002).

[4] 572 U.S. 701 (2014).

[5] 576 U.S.             , 135 S. Ct. 2726 (Breyer, J., dissenting).

[6] See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog

[7] In re Gault, 387 U.S. 1 (1967) (internal citation omitted).

January 16, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Appellate Advocacy Blog Weekly Roundup Saturday, January 16, 2021

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

US Supreme Court Opinions and News

  • This week, the Supreme Court allowed the current administration to carry out three final federal executions, including the first woman to be executed by the federal government since 1953. This administration resumed federal executions after seventeen years without one and has executed thirteen people since July. Justice Sotomayor’s dissent in US v. Higgs, the final case, begins:

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.

See reports in The Wall Street Journal, The Poughkeepsie Journal, CNN, The Washington Post, and The Associated Press

  • In the first abortion decision since Justice Barrett joined the court, the Supreme Court reinstated a requirement that women appear in person to pick up the pill required for medication abortions. The FDA rule had been waived during the pandemic, allowing the medicine to be distributed via mail. See the opinion and reports from The Associated Press, Bloomberg News, and Politico.

  • Taylor Swift became the subject of oral argument this week when the Justices discussed the singer’s request for nominal damages in a sexual assault suit. The discussion occurred during oral argument in Uzuegbunam v. Preczewski, a case asking whether students may sue their college for First Amendment Violations and seek nominal damages.  See reports in The New York Times and The Washington Post.

Federal Appellate Court Opinions and News

  • The Ninth Circuit will allow a SWAT officer’s First Amendment suit against the Las Vegas Police Department (LVPD) to proceed after he was penalized for a Facebook post. The LVPD claimed that the post incited violence but the court stated that the post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.” The decision comes in the wake of the violence at the US Capitol and amid debate about the line between free speech and inciting violence.  See opinion and report in the San Francisco Chronicle.  

  • The Third Circuit ruled that Philadelphia’s plan to open the nation’s first safe-injection site would violate federal law. The ruling is another barrier for the nonprofit Safehouse, which hoped to open the site to combat fatal drug overdoses. The site would have offered support to drug users, including providing intervention for overdoses. The court ruled that the site would violate a federal law making it illegal to knowingly host illicit drug use and drug related activity.  According to the court, only a change in federal law would sanction the site. “[Safehouse’s] motives are admirable. But Congress has made it a crime to open a property to others to use drugs.” See the order and reports from The Wall Street Journal and The Associated Press.  

State Appellate Court Opinions and News

The Colorado Supreme Court updated its common-law marriage standard, which was established in 1987, to better account for same-sex couples. The new standard follows from three rulings and creates a more flexible and gender-neutral test that looks only to whether the couple mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. See the rulings here, here, and here and a report in The Denver Post

January 16, 2021 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 3, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, January 3, 2021

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 New Year from the Weekly Roundup!

In the spirit of welcoming in a new year and reflecting on the old one, here are a few links doing just that: 

  • Chief Justice Roberts's 2020 year-end report on the Federal Judiciary is available here
  • Erwin Chemerinsky offers a year-end review of the Supreme Court in 2020. 
  • Mark Walsh and Nina Totenberg offer separate previews of the remainder of the 2020-2021 term. 

 

We look forward to bringing you appellate advocacy news in 2021.  

January 3, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, January 2, 2021

More Support for Oxford, or Serial, Commas

Many of my younger students come from collegiate writing programs which do not use Oxford commas.  These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more.  This comma, known as a serial or Oxford comma, can change meaning.  Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.

The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement.  The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay.  Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation.  (For more laughs, really, I highly recommend one of my family’s favorite books:  Lynne Truss, Eats, Shoots and Leaves:  The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)

Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers.  Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/.  As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”  Id. 

While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing.  As Gurnett concludes:  “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.”  Id.

Last week, Pocket republished Chris Stokel-Walker’s article on serial commas.  Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab.  In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies.  As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.”  Id.  He provides great examples to remind us about the need for precision.

First, Stokel-Walker cites the United States Tariff Act.  As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs.  However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.”  Id.  Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime.  Id.

Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial.  Id.  In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act.  Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.”  Id.  As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free.  Id.  Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown.  Id.  Unfortunately for Casement, the court applied the comma and ordered him executed.

Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.

Happy new year!

January 2, 2021 in Appellate Advocacy, Appellate Practice, Law School, Legal Writing | Permalink | Comments (0)

Saturday, December 26, 2020

The Power of The Rule of Three

Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.

Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.

Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.

The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…

Here is an example:

***

Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”

The defendant’s comments were defamatory for three reasons.  First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.

***

After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.

Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.

Why is the Rule of Three so effective?

1.    The Rule of Three simplifies your arguments

Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.

The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.

2.    The Rule of Three organizes your arguments

The worst briefs are often those that go on…and on…and on…

The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.  

The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.   

3.    The Rule of Three appeals to the audience’s cognition and psychology

Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?

Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.

The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere.  In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.[1]

Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.

Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.

Below are a few videos regarding the Rule of Three.

(1) The Rule of Three: a top speechwriter explains... - YouTube

The Rule of Three - A Law of Effective Communication - YouTube

(1) Steve Jobs: 3 Lessons From The Keynote Master - YouTube

 

[1] Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)

December 26, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (0)

Friday, December 18, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.

  • The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.

  • The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.

    A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here. 

Federal Appellate Court Opinions and News

  • The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police.  See reports by NYU’s First Amendment Watch and CommonWealth.   

  • The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),

Other News

The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.

December 18, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 13, 2020

Tips for Zoom Court & Moot Court: Follow In-Person Best Practices Even More Closely

Tired of online court, school, happy hour, family holidays, and more?  Me too.  However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve. 

Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court.  As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.

Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument.  You can see his blog here:  Judge Pierre Bergeron's Tips.  He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.”  Id.  These tips apply equally to in-person arguments. 

Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general.  See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020).  As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.”  Id.  Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.

Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico.  See id.  Thus, “preparing a presentation ahead of time is still crucial.”  Id.  Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam.  See id.  I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom. 

Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire.  Alder recommends:  “Dressing properly means wearing professional attire from head to toe, not just head to waist.”  Id.  “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.”  Id.  The key:  “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said.  Id.

We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges.  This lesson matters even more for online arguments, where the format makes true eye contact impossible.  To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal.  Id.  

Finally, we all need to be more attentive to virtual context clues in online arguments.  “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.”  Id.  Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said.  Id.  As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’”  Id.  And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question. 

In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world.  I know many law students and lawyers feel the same way.  But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.  

Be well!

December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Friday, December 4, 2020

Appellate Advocacy Blog Weekly Roundup Friday, December 4, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.

  • The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision).  See reports from NPR, The New York Times, and The Washington Post.

  • James Romoser posted a thread this week about the petitions the Court is considering this week.

Federal Appellate Court Opinions and News

  • While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.”  See the order and reports from The Washington Post and The Hill.

  • The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment.  The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky.  See the order and reports from the Philadelphia Inquirer and ESPN.

Other News

Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.

December 4, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Thursday, December 3, 2020

Practice Pointers for Zoom Oral Arguments

            Since virtually every appellate court in the country is conducting oral arguments by video at this point (I’ll use “Zoom” for shorthand, since that appears to be the platform of choice), I thought it appropriate to offer a few pointers for Zoom arguments based on my experience serving as an appellate judge for dozens of such arguments. And I’ll preface this by saying that overall these arguments have gone very well—the technology has worked, counsel has performed admirably, and I think Zoom arguments have exceeded our expectations.

            Practice with the medium: Make sure that you’re comfortable with the technology, and that you have a reliable internet connection (hard-wired if at all possible). Do a virtual moot with some colleagues to ensure that you’re ready for the argument.

            Pause: Some judges are a little more reluctant to interrupt during Zoom arguments, so bear that in mind. A good practice is to pause periodically, just for a split second or so, in an effort to invite questions. Some lawyers launch into extended soliloquys with hardly a breath, which discourages questioning. You want oral argument to be a discussion so that you can tell where you need to persuade the panel.

            Know your record (and cases): When you are in court, there’s a limited amount of materials that you can take with you to the podium. For Zoom arguments, however, you can be surrounded by all sorts of record cites and cases at your desk. But be wary of this – just because you have stacks of papers does not mean you can actually locate key record cites in response to a question. Consider just having the most important parts of the record at the ready, much like you would in court.

            Backup plans: Crazy things happen in Zoom arguments. Sometimes counsel disappears; sometimes judges do. The important thing is to anticipate such problems (much like a difficult hypothetical) and know what to do if you’re cut off from the argument. Most courts have information sheets with telephonic numbers to call into in the event of a technological glitch, but if not, ask for this in advance of argument.

            Provide a roadmap: Roadmaps are always helpful for oral arguments, but I’ve found that particularly so for Zoom arguments. Some courts don’t have a clock on the screen, and it’s not unusual for judges and counsel to lose track of time. If you’ve provided a good roadmap, it might encourage questions from the judges to focus you on the arguments they’re interested in, and it may help you manage your time better.

            Seek clarification when necessary: Sometimes the judges encounter technological glitches themselves—if this occurs during a question, don’t be shy about asking the judge to repeat the question rather than risk answering the wrong question. Also, I’ve seen situations where a presiding judge may have not understood that a particular counsel was going to argue (in multi-party appeals) until too late—if you have any doubt about something like this, it’s best to clarify that you’re going to argue for x minutes and co-counsel will argue for y, or something similar.

            Good luck out there! We hope to see you in person in 2021! -- Judge Pierre Bergeron

December 3, 2020 in Appellate Advocacy, Appellate Practice | Permalink | Comments (1)

Sunday, November 29, 2020

Covid-19 and Religious Liberty

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.[1]

The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices.[2] Second, the government may not enact laws that impose a substantial burden on religious practices.[3] Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply.[4] Fourth, the government may not coerce individuals into acting contrary to their religious beliefs.[5] Fifth, the government may not target or discriminate against religion generally or specific religious denominations.[6]

In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:

Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.

Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.

Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.[7]

In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.[8]

In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause.[9] To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.[10]

Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people.[11] Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.”[12] Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.”[13] This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:

[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?[14]

Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:

People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.[15]

Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”[16]

Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot.[17]  For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.[18]  

Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses.[19] In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures.[20] Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,” [21] Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”[22]

Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.

1.    Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends

Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:

What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.[23]

In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:

In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.[24]

In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”[25]

Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.[26]

The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.

2.    Chief Justice Roberts is arguably prioritizing politics over the rule of law

Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.

Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”[27]

Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.

Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.

3.    Ideology continues to influence the justices’ decisions

It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.

Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.

These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.

 

[1] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[2] See Reynolds v. United States, 98 U.S. 145 (1878)

[3] See Wisconsin v. Yoder, 406 U.S. 205 (1972).

[4] See United States v. Ballard, 322 U.S. 78 (1044).

[5]  See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

[6] See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).

[7] See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday

[8] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[9] See id.

[10] See id.

[11] See id.

[12] Id.

[13] Id. (Gorsuch, J., concurring)

[14] Id.

[15] Id.

[16] Id.

[17] See id.

[18] See id. (Justice Breyer also dissented on similar grounds).

[19] See id. (Sotomayor, J., dissenting).

[20] See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S.                 , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S.      , available at: 19a1070_08l1.pdf (supremecourt.gov)

[21] Id. (Sotomayor, J., dissenting).

[22] Id.

[23] Id. (Gorsuch, J. concurring).

[24] Id.

[25] Id.

[26] Id. (Roberts, J., concurring).

[27] Id. (Gorsuch, J., concurring).

November 29, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)