Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Tuesday, October 15, 2019
Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.
Model Rule 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.
Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.
Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:
were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.
The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.
The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.
Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]
Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.
Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.
In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.
In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.
The court admonished:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:
While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.
Finally, appellate counsel must be mindful of Model Rule 8.2(a):
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .
Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).
Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.
The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:
Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
Id. at 148-49.
Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.
We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.
Monday, October 14, 2019
If you’ve dreamed of arguing in the Supreme Court, are willing to wear a morning coat, and have the right credentials, there’s a job opening for an Assistant to the Solicitor General of the United States. The posting closes on November 1, so there are still two weeks to apply.
The Solicitor General, currently Neal Francisco, represents the United States before the Supreme Court. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. According to the job posting, Assistants to the Solicitor General:
work on briefs on the merits, petitions for writs of certiorari, jurisdictional statements, briefs in opposition, motions to affirm, papers relating to stays, and other forms of motion practice before the U.S. Supreme Court. They also review recommendations as to whether the government should seek U.S. Supreme Court review in cases it has lost, whether the United States should appeal to intermediate appellate courts cases it has lost in the trial courts, whether the United States should pursue rehearing en banc when cases are lost at the appellate level. They prepare memoranda to the Solicitor General containing such recommendations and also memoranda discussing other legal problems as assigned; draft correspondence; and advise the Solicitor General on different aspects of the work of the Office. The incumbent argues cases before the U.S. Supreme Court–ordinarily two to three times each Supreme Court term.
Of course, it is a prestigious position, and the qualifications reflect that.
1. J.D. degree, active bar membership;
2. Exceptional and strong academic background;
3. Federal appellate clerkship or Supreme Court clerkship strongly encouraged;
4. Significant federal appellate litigation experience;
5. Broad experience in areas of law germane to federal governmental practice;
6. Exceptional writing skills;
7. Strong oral advocacy skills; and
8. Demonstrated ability to work cooperatively with less experienced attorneys, providing guidance and assistance.
Historically, many who served in the SG office have gone on to the bench or to serve in other government office. Good luck to all of the applicants!
Saturday, October 12, 2019
United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons
On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.
Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
By way of background, Title VII provides in relevant part as follows:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.
II. Discrimination on the Basis of Sexual Orientation
On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.
On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).
III. Discrimination Against Transgendered Persons
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:
Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.
Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”
This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”
Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”
The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.
The Court will likely issue a decision in June 2020.
 42 U.S.C § 2000e-2.
 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).
 See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.
 Id. at p. 27:22-25.
 Id. at p. 25:17-18.
 Id. at p. 50:24-51:1 (emphasis added).
 Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.
Wednesday, October 9, 2019
It has been a week since Supreme Court of the United States rocked the always-ready-to-rock appellate-advocacy world by rolling out the Two Minute Rule: lead counsel for parties generally will have two minutes to argue uninterrupted before a white light shines and the questioning begins. We at the Appellate Advocacy Blog have feelings—many feelings, complicated feelings, nascent feelings—about this rule. But mostly we’re curious to see how it plays out.
If the justices mostly adhere to the rule—and, as the term began this week, early reviews indicate that they mostly did—composing a set piece for that two-minute window likely will become part of the advocate’s craft. For now, though, in the early days of this new world, I’m just curious: what does an uninterrupted two-minute opening look like on the page, seeing as we’re used to seeing JUSTICE HOTMCBENCHFACE appear on the transcript a few syllables after “May it please the Court...”?
Here’s the answer, from a pair of First Monday/First Tuesday arguments by particularly outstanding advocates.
Sarah Schrup of Northwestern Law School, counsel for Petitioner in Kahler v. Kansas, whose first question from Justice Ginsburg came right after the dying of the white light:
Pamela Karlan of Stanford Law School for Petitioner in Bostock v. Clayton County:
That is the canvas.
Sunday, October 6, 2019
Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.” Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.” In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”
What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?
1. Justice Scalia Wrote Clearly and Concisely
Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.
2. Justice Scalia Wrote for the Audience
Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:
I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."
For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.
Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters
3. Justice Scalia Understood the Importance of Rewriting and Revising
Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:
I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."
Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:
What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."
Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.
4. Justice Scalia Understood that Great Writing Reflects Great Thinking
Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind." An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.
5. Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience
Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.
As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.
Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.” Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”
 David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer
 Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).
 Id. (emphasis in original).
 Id. (emphasis in original).
 Id. (emphasis added).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).
 Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.
Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).
Saturday, October 5, 2019
Recently, in a first-year writing class covering hierarchy of authority and our U.S. Court system, my students and I discussed membership in the bars of the United States Supreme Court and Circuit Courts of Appeals. The 1Ls did not know these courts have separate bars and admissions, and asked how and why practitioners might join. I shared the process for the Supreme Court and the Ninth Circuit (we’re in California) with them, and let them know they might even participate in a December group swearing-in at a Circuit Court one day. Many students said they would see these memberships as prestigious and impressive.
The class discussion led me to survey my local appellate pals informally. While a few were jaded about the value of listing these bar admissions in their firm bios or on resumes, many of our appellate community practitioners use memberships in these bars as indicia of appellate experience, especially if they do not have a state appellate specialization to list. A search of Twitter reveals attorneys bragging about their federal licenses, and one friend told me she added all of her federal bar admissions to her LinkedIn profile when she let her state appellate specialization expire. Another colleague told me partners asked about these admissions when he wanted to move from litigation to an appellate department at a large law firm. While this is anecdotal evidence, it supports the value in highlighting any federal bar memberships, especially appellate court bar memberships.
Therefore, the next time you update a professional profile, you should consider adding any federal bar admissions you have. In fact, one law school career development office expressly suggests doing so. https://pennstatelaw.psu.edu/career-planning-and-development/alumni-career-services/adding-bar-admission-your-resume.
Curious about applying to a federal bar? Check out the court’s website. If you do not have an account for online filing, you will need one to practice at the Circuit Court (and sometimes you need to be a member first to create these accounts), so learn about PACER and CM/ECF, and start your registration process. Most of the Circuits still require anyone not newly admitted to a state bar to have either a sponsor or a clerk certification, and to also obtain a certificate of good standing from their state bar. E.g., https://www.ca9.uscourts.gov/content/atty_instructions.php; http://www.ca2.uscourts.gov/clerk/attorneys/admission_instructions.html. Moreover, while the forms are now available online through PACER, the $220-230 fee required by the courts is not de minimis. These are even more reasons to brag about your membership once you join. And, if you want the details for each federal court, author and general counsel John Okray has written an entire book on admission to the various federal district and circuit courts, U.S. Federal Courts: Attorney Admission Requirements: 2011 Edition (2nd Revised Ed. Lawyerup Press 2010).
Please feel free to comment about the memberships you list on your profiles and bios. I’ll be sure to share comments with my students. Thanks!
Wednesday, October 2, 2019
October is a great month, perhaps the greatest month of all. In October, the oppressive heat of the summer sun begins to wane – this year being an exception, of course. With the waning oppression, we have moments of crisp, cool, clear days where the sky is a deep blue, and every breath we draw has a freshness that cannot compare. The stifling chaos that we saw in August, as we tried to cram in just a few more days of summer fun, and prepare to move our offspring back to college, or go shopping for new school supplies, persisted into September. Do you remember September? That blur of back-to-school, with new routines and bedtime fights, and syllabuses that won’t write themselves, and fresh first year law students eager to grasp the subtle nuances of CREAC. Oh yes, I stepped out of September with barely a glance back and walked, head held high, into October.
But why? Why is it that I greet October with such reverence? October is the beginning of holiday season. Yes, I know that many do not consider Halloween to be a true holiday, but it is the start of a season of festivities that will march us month by month, holiday by holiday, until spring. But even the holidays, and the cooler weather, and the promise of sweaters and bonfires, and apples and pumpkins, are not the reason why October is the most romantic of months. October marks the opening of two things that make me giddy: First, the Supreme Court session year opens with all of its promise and anticipation and, second, October marks the opening of the moot court season with equal amounts of promise and anticipation. I recognize that for many practitioners, news people, and scholars, nothing can compare to the October session of the Supreme Court. And for me, I will be watching, waiting, and pontificating, for sure. As I went to compile a short list, I went from, "oh this case," and "ah that case," to "how can I choose?" Just check out the line-up for yourself: https://www.scotusblog.com/case-files/terms/ot2019/
My muse, however, is moot court, where my students and I get to dabble in mock cases based on the issues that the Court will be tackling. In fact, last year, my students argued many of the issues that will be decided this term. October marks the beginning (if you don’t count all the briefs that were due in the last few weeks).
Just like those of us in the real world have been making adjustments in late August and early September, my students have been re-adjusting to a new school year. In addition, our 2Ls and 3Ls have been busy writing briefs and practicing their oral advocacy skills. And, now, beginning this coming weekend, and over the many weekends to come, they get to see how they have been doing. Certainly, I have been giving the praise and critiques. We’ve been honing their skills, and sharpening their wits. But at this point, my praise is beginning to sound parental. They need to see how their work pans out in the “real” world, or as real as it gets before you are barred (or have your 3rd year practice certificate). Strangers, who haven’t learned to love each of them for who they are, will be assessing their strengths and weaknesses, and the best part is my students will know almost instantaneously how they fared.
I love this for my students. I want the judges to be respectfully honest, and I want my students to see that some things are truly up to the subjective nature of the individual, while other things are almost universally true. When we know what is universally true, we can begin to learn how to adjust and account for the subjective expectations of others. I love that my students have the opportunity to take the feedback they receive and then incorporate that into the next competition, and I treasure the unique opportunity that I have to see them grow and mature. In less than a year, my 3Ls will leave this moot court world behind, but they will never forget. Moot court students are the marching band of law school. They will forever think fondly of their experiences, and will tell cautionary tales that arise from their negative experiences. They will return to the school and share their real world experience with my next crop of students, and when they get picked to argue in one circuit or the other, they will call me. And it all starts in October.
Tuesday, October 1, 2019
Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.
Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished. Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.
But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.
Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.
Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.
In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.
 “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).
Thursday, September 26, 2019
The second podcast in the SCOTUStalk series on oral advocacy featured William Jay, a former assistant US Solicitor and current partner at Goodwin. He has argued 17 cases before the Supreme Court and is a former clerk of Justice Scalia.
This podcast is full of practical tips for the appellate advocate. In response to questions from Amy Howe of Howe on Court, Jay described the differences between lower court practice and the nation's highest court. A seemingly obvious observation, but one not often discussed, was the dynamic that at the Supreme Court the advocate always faces the same nine judges. In the lower courts an advocate might not know who is on the panel until the morning of the argument. At the Supreme Court, this gives an obvious advantage to allow an advocate to be knowledgeable about each justices' prior written positions on the issue. Further, knowing the justices' questioning style is helpful. Jay characterized Justice Scalia as a questioner for whom he never had to guess his opinion, but also knew he was open to persuasive arguments.
In preparation for his appearances at the Court, Jay conducted at least 2-4 moot sessions. He points out that as a government attorney, he had access to agency expertise and heavily used those resources. As a new attorney arguing for the government he remarked that the cases given to the newbies were either 9-0 winners, or 9-0 losers. He is not sure whether his first tax case was supposed to be a winner or a loser, but he was up against a formidable lawyer who later became a federal judge herself.
Jay said the hardest kinds of questions to answer are the "line drawing questions" - those questions where the justices keep presenting hypothetical like "it is 2 years, 3 years, 4 years?" He states that for those questions the best way to answer is have some limiting principle in mind, to anticipate these hypotheticals, and to have potential exit strategies. Jay says that one mistake new advocates make is that they think they can decisively direct the flow of the argument. Never tell the Court "I'll get to that," or, "That is not this case."
On rebuttal he discussed the competing philosophies of whether one should make a glancing blow at a primary issue, or take the knock out to a tertiary issue. He came down on the side of attacking the primary issue even if the strike is not as spectacular as another lesser point that might be made.
A final bit of advice was to the substance of the oral argument. Jay said that the presentation of the argument should be the substance of the brief, but stated differently. Think of the thematic points, where to start the argument, and the absolute 2-5 things that must be said.
Monday, September 23, 2019
Yes, the title of this blog is designed to raise eyebrows. But no, I am not arguing for judicial activism as defined by the right or the left. Rather, I am arguing for a court that takes an active role in legal education. We need judges--state and federal--who visit law school classes, speak at campus events, teach classes and seminars, take interns, and otherwise engage in legal education in their state.
Since moving to Arizona, I have been astounded at how involved that state and federal judges are at the state law schools. For example, each academic year the state Supreme Court and the local appellate court hold arguments at the school where I teach. The local appellate court also welcomes students in our brief-writing course to its courtroom each semester to give their final arguments, with all of the judges and many of the clerks and staff attorneys serving as judges for the arguments.
Current and retired appellate judges and justices teach courses at the law school. They also attend campus events, give lectures at orientation or to student groups, judge competitions, and attend social events.
While I see the state judges on campus the most, the federal bench is also active. The federal judges are also good about judging competitions and speaking at or attending events. They also take a lot of student interns, and I always hear from students about what a great opportunity it was to intern at federal court.
The advantages of an active, engaged bench are profound.
First, judges make great mentors and role models for the students. Students are often more likely to listen to advice from judges, especially on topics like professionalism and civility, which are extremely important skills for students to learn.
Second, and related, judges reinforce what is said in the classroom. I can count on one hand the number of times that I have heard a judge give advice on brief-writing, advocacy, or professionalism that I disagree with. Generally, we are all on the same page, and, to the extent that we want to produce excellent future lawyers, we are all on the same team.
Third, our students are likely to give and do their best if a real judge is involved in an event or competition. While some students still care about impressing professors, nearly all of them care about impressing judges. They rightly see judges as a possible future employer and/or someone that they should try to impress.
Finally, having judges involved gives faculty a break. I can judge arguments, competitions, speak at events, and socialize, but it is so nice to have local judges who are willing to step into that role. Sometimes, after saying the same things over and over, we faculty members just need a break. Thankfully, we have enough judges in Arizona who lend a helping hand that they can get a break too!
I want to thank all of the state and federal judges who devote so much time to making law school a better experience for students. Your hard work does have an impact!
Saturday, September 21, 2019
Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated. According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it." The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time." https://constitution.congress.gov/about/
The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers. The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional.
Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited. Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only. On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.
In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained: “Unfortunately, the public facing version is not . . . lucid.” The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen." The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public. Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students." https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.
Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated. While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested. On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”
Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions. Moreover, the pages are integrated nicely with the Library’s other resources. For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.
For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource. Hopefully, the continued updates will be quick and helpful as well. Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.
Tuesday, September 17, 2019
Appellate advocates must write clean, crisp prose that will persuade judges. We constantly strive to improve the readability of our prose. But the conventions of legal writing often interfere with readability. One such convention is how we format and cite quotations from case law, particularly when we alter or omit inconsequential parts of the quotation to make the quotation more readable, or when the material we are quoting is a quotation from an earlier case.
Let’s say that we represent Mr. Smith in his claim that officers used excessive force. In our brief we write:
Officers used excessive force when they arrested Smith.
In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, [sic] (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459. 468-469 (S.D.N.Y.2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).
Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).
Does it matter to our argument that the reader know that the Higginbotham court quoted Lynch, a case from another district court, for this standard (or that Lynch quoted another district court case); that the court added the word “whether” to that quote; that it omitted emphasis and alteration; or that the court in Higginbotham mistakenly used a comma after “tight” when the Lynch court had used a semicolon? In most instances, that information does not affect our analysis, so why do we include it if our goal is to write clean, crisp prose? The short answer is that the Bluebook says we should. But one author, Jack Metzler, who tweets as @SCOTUSPlaces, suggests that we omit this superfluous material. He has proposed a new citation parenthetical—(cleaned up) to help make our prose more readable when we quote case law.
In Cleaning Up Citations, 18 J.App. Prac. & Process 142 (2017), https://ssrn.com/abstract=2935374 Metzler discusses the need for, and importance, of accurate quotations and citations. He points out that the citation sentence following a quotation gives readers the information they need to assess the weight of the quoted authority. But, he notes, quotations and citations are in tension with the need for readability. So how can we convey the information the reader needs to assess the weight of authority without interfering with the readability of our brief? Metzler proposes that “legal writers adopt the parenthetical (cleaned up)” to show that in quoting a court’s opinion the writer:
- has removed extraneous, non-substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and internal citations;
- may have changed capitalization without using brackets to indicate that change; and
- affirmatively represents that the alterations were made solely to enhance readability and that the quotation otherwise faithfully reproduces the quoted text.
Id. at 154.
Lawyers, beholden as we are to tradition, might be reluctant to use (cleaned up) but we are in good company if we do. Bryan Garner, an expert on legal writing, has endorsed (cleaned up) https://www.lawprose.org/lawprose-lesson-303-cleaned-up-quotations-and-citations/ and judges across the country have used (cleaned up) in opinions. According to Metzler, as of August 31, 2019, (cleaned up) had been used in 1775 judicial opinions. It has been used by every federal circuit court of appeals except the First, fifty-four United States District Courts, twelve state supreme courts, and ten state intermediate appellate courts.
(Cleaned up) has its critics. Adam Eakman, blogging at Attorney Words, has identified some problems with using (cleaned up). Several examples Eakman gives stem from misuse or misunderstanding of how and when to use this new parenthetical. http://attorneywords.com/cleaned-up/. And, as Eakman points out, it is often better to paraphrase material from a case than to quote it. Eakman believes that (cleaned up) gives writers an “easy out” that will cause lawyers to quote material rather than paraphrasing. While that may be true, given the penchant lawyers have for quoting it’s better to make those quotations more readable. (Cleaned up) does that. We can work on paraphrasing too (and sometimes it takes work to paraphrase well).
So, how does (cleaned up) up work in practice? Let’s clean up the example in our brief for Mr. Smith:
Officers used excessive force when they arrested Smith. “In evaluating these claims, a court must consider (1) whether the handcuffs were unreasonably tight, (2) whether the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015) (cleaned up).
Our quotation is now easier to read and what was a block quotation (fifty words or more) can now be an in-line quotation. Metzler’s article gives several other examples of how (cleaned up) can help improve the readability of legal writing, something we should always try to do.
Sunday, September 15, 2019
Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers
Learning how to write effectively and persuasively in a variety of legal contexts is among the most important skills needed to competently practice law. Indeed, a recent survey by LexisNexis that included 300 hiring partners and law faculty revealed that forty-one percent of attorneys and fifty-one percent of law faculty believe that writing is among the most important skills needed to successfully practice law. See BarBri State of the Legal Field Survey, available at: http:// www.thebarbrigroup.com/files/white-papers/220173_bar_researchsummary_1502_v09.pdf.
Put simply, excellent lawyers are also excellent writers. A lawyer’s ability to draft persuasive pleadings, motions, and briefs at the trial and appellate stage often determines the likelihood of success in a particular case and the likelihood that an attorney will achieve success in the legal profession.
Given the importance of developing effective legal writing skills, particularly regarding persuasive writing, aspiring and current law students should strive to perfect their writing skills before graduation. Below are five tips, regarding both style and substance, that will provide a solid foundation upon which develop competent persuasive writing skills.
- Rewrite and Revise
Great lawyers know that their first drafts of pleadings, motions, and briefs are not their best and final drafts. Instead, great lawyers focus on rewriting and revising their first draft to ensure that their work product is of the highest quality.
The rewriting phase consists of a macro or substantive edit. A macro edit involves reviewing and editing a legal document for large-scale errors or omissions, with a particular focus on the flow, clarity, and substance of legal arguments. During this stage, you should:
- Ensure that your document flows effectively, is concisely written, and is easy to understand (e.g., eliminate unnecessary repetition and extraneous or irrelevant facts);
- Ensure that you have stated the law accurately;
- Eliminate unnecessary exposition of legal doctrine (i.e., state what the governing law is, but avoid a lengthy recitation of how the law developed);
- Ensure that you have addressed relevant counterarguments and acknowledged weaknesses in your case where appropriate; and
- Ensure that you have a powerful introduction in which you clearly state the basis upon which your client should prevail and obtain the remedy you seek.
The revising phase consists of a micro or stylistic edit. During this stage, you should:
- Ensure that there are no grammatical and spelling errors (if your legal document has spelling or grammatical errors, it will detract from the credibility of your legal argument);
- Separate long paragraphs into smaller paragraphs (as a general matter, a paragraph should be three to five sentences);
- Identify and revise lengthy sentences (as a general rule, sentences should be no longer than twenty-five words);
- Eliminate unnecessary words (particularly adjectives), commonly confused words, over-the-top language, and artificial emphasis;
- Ensure that you use transition words effectively;
- Maintain consistency in verb tense; and
- Ensure that you are using the active voice,
- Be Concise and Keep It Simple
Judges are very busy and, with the assistance of their clerks, judges read countless motions and briefs. Given this fact, neither a judge nor a clerk desires to read pleadings, motions, or briefs that are unnecessarily verbose and lengthy. For this reason, be sure to eliminate complex, esoteric, or unnecessary words, Latin, legalese, lengthy words and phrases, and repetition from your documents. Indeed, the quality of an attorney’s writing directly affects an attorney’s credibility and, ultimately, the likelihood of succeeding on the merits. Consider the following example (as stated in a complaint):
"The defendant’s shocking and insulting statements, which, as discussed infra and as outlined supra, were false, malicious, and injurious, particularly given that the statements caused plaintiff immeasurable embarrassment and humiliation ipso facto demonstrate that plaintiff has stated a prima facie case that the defendant defamed plaintiff in an egregious manner."
"The defendant made intentionally false and defamatory statements that caused the plaintiff to suffer substantial damages."
The first sentence is fifty words and the second is sixteen words. Yet, both sentences convey the same meaning and make the identical claim. Put simply, when drafting a complaint, focus not merely upon what you are saying, but how you are saying it.
- Draft a Compelling Factual Narrative
Although the governing legal principles in a case are certainly important, the facts of a case largely determine whether a litigant is likely to succeed on the merits. Indeed, because legal rules or standards are often stated in broad terms, the application and interpretation of those principles depend on the facts of a particular case. For example, the Eighth Amendment to the United States Constitution prohibits the imposition of “cruel unusual punishment.” Whether a punishment is cruel and unusual, of course, depends on the facts, namely, the specific punishment at issue that a claimant alleges violates the Eighth Amendment. Likewise, basic contract law principles provide that a contract is not valid without the parties’ assent. Whether the requisite assent is present obviously depends on the facts of a particular case. As these examples demonstrate, the facts, not the law, most likely determine whether a client is likely to prevail. For this reason, when drafting a pleading, motion or brief, be sure to focus on drafting a compelling, detailed, and concise factual narrative in which you persuade the court that a ruling in your favor is the correct and just outcome.
- Address Unfavorable Law and Counterarguments, and Explain Why They Do Not Affect The Remedy You are Seeking
In most cases, the law will not completely and unequivocally support an attorney’s legal position. Rather, the relevant case law will often contain favorable and unfavorable decisions that create some degree of uncertainty regarding the likelihood of succeeding on the merits.
Importantly, when drafting a brief at the trial, appellate, or supreme court level, an attorney should never ignore unfavorable case law. Doing so is dishonest and strategically risky because, in most instances, the judge will find the law that a lawyer has ignored, which will damage the attorney’s credibility and the persuasive value of the attorney’s legal arguments. To avoid this problem, a competent attorney will acknowledge unfavorable case law and explain to the court why these cases do not undermine the attorney’s argument and the remedy that the attorney is seeking. In so doing, an attorney will retain credibility with the court and maximize a client’s chances of succeeding.
- If You Want to Become an Excellent Writer, Read Excellent Writing
If you want to become an effective legal writer, be sure to read excellent legal writing, which will enable you to observe, among other things, how experienced attorneys apply various persuasive writing techniques to maximizes their factual and legal narratives.
Law students who are interested in reading excellent legal writing can begin by reading John Roberts’ brief in Alaska v. Environmental Protection Agency, which can be accessed here: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.
Of course, these tips are not exhaustive, but they will provide a foundation upon which law students can begin to develop effective writing skills. Additional resources include the following:
Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, available at: https://www.amazon.com/Point-Made-Write-Nations-Advocates/dp/0199943850
Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges, available at: https://www.amazon.com/Making-Your-Case-Persuading-Judges/dp/0314184716
Steven Stark, Writing to Win: The Legal Writer, available at: https://www.amazon.com/Writing-Win-Steven-D-Stark/dp/0307888711
Richard C. Wydick, Plain English for Lawyers, available at: https://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518
Thursday, September 12, 2019
Amy Howe, a former contributor at SCOTUSblog, is conducting a podcast series with notable Supreme Court oral advocates. The first in the series to be interviewed was Paul Smith who has argued twenty-one cases before the Court. Smith discusses his first appearance in the Court in 1986, pre-Scalia days, and how things have changed. He says that it used to be common for the petitioner to take three or four minutes to frame the facts, before having to field any questions. Today, a concise opening statement of less than two minutes is imperative if one wishes to have any hope of framing the argument at all.
His preparation for arguments is not mysterious. He rereads all the briefs, tries to anticipates the hard questions, drafts a short outline of his intended argument, and most importantly conducts numerous moot courts. He emphasizes that a memorized but not rehearsed-sounding opening is important. He recalls Justice Rehnquist interrupting opposing counsel during one argument with the interjection, "Are you reading?!" flustering the other attorney so much that he barely recovered.
Smith argued the landmark case of Lawrence v. Texas, and recalls getting questions from Justice Scalia that he had not anticipated nor had anyone in his moot preparations hit upon during practice. Smith says all one can do in that situation is hope that you can come up with something sensible, and perhaps get lucky with a friendly justice who may intervene. However, he states that if a thorough moot court preparation has been undertaken, it is usually the case that an answer can be formed that is consistent and coherent with your position.
As for strategies when taking the respondents' position, Smith says there is not much time to take notes. An advocate must just listen and make one decision - where to start. When contemplating rebuttal, an additional decision should be made - whether to make one at all. Many times those who make rebuttal often wish they had not stood up.
The series can be found at SCOTUStalk and the episodes are less than twenty minutes long.
Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Monday, September 9, 2019
While many lawyers might think that being a judge would be an ideal job, we sometimes forget that judges generally* don't get to pick their cases. So, once a judge is assigned a case, he is stuck with it (unless, of course, he can get rid of it under some justiciability doctrine).
It turns out, however, that there is another way to get rid of a case, at least according to the Court of Appeal for Ontario, Canada. A three justice panel of the court heard an appeal in a real estate matter. According to a news story, the case concerned failed real estate investments. The plaintiff "was to provide second mortgage financing for real estate units, but they were never 'renovated, rented or sold, as anticipated,' and the mortgages went into default." The plaintiff "was trying to recover amounts that were due under second mortgages and stand-alone guarantee agreements signed by individual defendants." At issue were a choice of law and statute of limitations questions.
The appellate court issued its opinion on May 27, 2019. However, one of the justices who signed on to the opinion had not heard the case. Apparently, according to a later opinion, "One of the members of the panel that heard the appeal . . . was not provided with either the draft judgment for review or the final judgment for signature. The judgment was signed, in error, by another justice who was not a member of the panel that heard the appeal."
After being made aware of the problem and submitting briefs on the matter, one of the parties suggested that the omitted justice just review the opinion and either "assent to or dissent from" it. The court, however, disagreed. It said "The panel of judges that rendered judgment was not the same panel that heard the appeal. . . . The decision-making process has been compromised and this panel cannot render a judgment." The panel concluded that "the appeal must be re-heard by a differently constituted panel of the court."
Having clerked for an appellate court, albeit an American one, I have no idea how this could happen. The news story that I saw on the case didn't shed any light on the cause of the error either. It quotes a senior legal officer for the court who said that there were "several procedures in place to prevent such mistakes" and who called the error "rare." I would hope it would be rare! I would be curious to know how much the court's mistake has cost the parties in additional legal fees--not only did they have to submit additional briefs, the case now has to be reargued.
Fortunately for the parties, a new panel will hear the case on the expedited schedule. Hopefully they will get their issues resolved soon.
*Courts with discretionary review, like the U.S. Supreme Court, certainly do have control over their dockets.
Wednesday, September 4, 2019
I'm often asked by practitioners who are preparing for their first oral argument in the United States Court of Appeals for the Seventh Circuit about good resources regarding what to expect. And my answer's always the same: read the Handbook. The court maintains an excellent Practitioner's Handbook for Appeals. And thank goodness it does. For one thing, the Seventh Circuit is notoriously persnickety about compliance with briefing rules. As the Handbook notes, its clerks flag about 10–15% of briefs tendered for filing as deficient. The Handbook gives detailed advice about how to avoid getting your brief bounced, including four pages on generating an unrejectable jurisdictional statement. The court's advice on brief content requirements nicely fleshes out the requirements of FRAP Rule 28(a) with concrete tips about drafting segments of the brief. And its eight pages on typography in briefs: indispensable.
The Handbook also isn't half bad as a primer on oral argument. The Seventh Circuit is an oral argument-heavy joint. Unlike in most circuits, oral argument is the norm; with rare exceptions, the court schedules oral argument in all counseled cases. So it's not surprising that a big chunk of the Handbook (nine tersely-written pages) describes the process of oral argument in the circuit. The advice about sound presentation is all excellent.
The Seventh Circuit is not alone in providing a practitioner guide that offers solid tips about oral argument. A few examples, with links that'll jump you to the oral argument stuff:
- The U.S. Supreme Court's recently updated Guide for Counsel is thorough and concrete. I draw from it often when I teach and moot advocates.
- The Fifth Circuit's Practitioner's Guide is designed to make it easier for pro se litigants (and lawyers) to practice before the court. Its seven pages of information on oral argument goes beyond scheduling and mechanics to offer useful tips on preparation and presentation.
- The Tenth Circuit Practitioner Guide's ten pages on oral argument feature some nice formulations of standard advice:
And this tattoo-worthy tip:
Thursday, August 29, 2019
I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American's Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates. And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging. And while the focus was on competition judges, the psychology applies in daily practice. For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender. These same judges practice law in our communities and serve as judges in our courts.
I want to ask how we can combat those biases, but I don't think that is the answer. Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance. But in certain circumstances standing up against indignities is absolutely required.
Unfortunately, we are raised in a civilized society. We don't expect anyone to be blatantly biased, and we are shocked when it happens. If we haven't thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock. As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in. I talk to my students about bias and we discuss the how and when.
Where do you draw the line? Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit bias towards you, your client, or your team? Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room?
Tuesday, August 20, 2019
There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.
But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.
First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.
Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.
Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.
And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.
Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.
Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)