Appellate Advocacy Blog

Tips for Writing a Persuasive Reply Brief

Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.

1.    Begin with a concise and powerful introduction.

Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.

After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.

2.    Focus on what your adversary did not say.

Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.

3.    Respond to some of your adversary’s arguments.

The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments.  If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.

Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.

4.    Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.

The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.

Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.

5.    Write your reply brief with the expectation that it may be the first document that the judge reads in your case.

Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues.  This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.

6.    Maintain consistency with your initial brief.

Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.

7.    Keep it short and re-enforce your theme.

Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.

8.    End strong.

A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.

 

 

Presenting Issues as an Advocate

Last week, I responded to a noticeably short opening brief in an interlocutory appeal that sought to make the issue a simple one. That brief mustered little authority and asserted a purely legal question reflected in the relevant law’s text. In framing the issue, the brief stated it neutrally as though the brief would provide a learned disquisition that would enable the court to answer the question, rather than advocacy of a particular result. Of course, the body of the brief pushed a singular point of view. The question presented, then, did not contribute to the advocacy.

Usually, advocates lose an opportunity when the issue presented does not itself suggest an obvious answer. Judges normally read the issue presented as the first clue about what the case concerns. My brief began with a “restatement” of the issue presented, which emphasized whether the issue merited an answer because of an underlying dispute about the facts. A court does not answer a pure legal question when the answer is merely advisory. The case concerned an immunity for one of two bases for liability. If the other party lacked eligibility for the immunity, as we contended, then the court, under its precedents, lacked jurisdiction to answer the question and should, as it had done in the past, dismiss the appeal as improvidently granted.

In restating the question to pose the problem that a central factual dispute still existed, I led the court into the first section of my brief, where I quoted the court’s own observation that “too often” courts grant review of a pure legal question only to discover upon briefing and argument that facts must first be established before the question becomes ripe. More substantive sections of the brief also worked in the unanswered question of eligibility as confounding to deeper questions about the statute as a whole and limits on the constitutional authority to promulgate the immunity.  

In restating the question as I did, I followed the age-old advice voiced again by Justice Scalia and Bryan Garner in Making Your Case: The Art of Persuading Judges: “A well-framed issue statement suggests the outcome you desire.”[1] They follow that statement with an example of the Court’s framing of the issue in Eisenstadt v. Baird, the once-again controversial case of whether Connecticut could prohibit the sale of contraceptives to unmarried people.

The authors note that Judge Posner thought the Court might have struggled more with an answer if the question presented were stated as:

We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly.[2]

Instead, the Court presented the issue as:

If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.[3]

Both versions of the question presented suggests an answer. Still, there is a cognizable difference between them that advocates should recognize. The first version, drafted by Judge Posner, makes an appeal to an ideological predisposition by its language that may alienate some judges. A more effective formulation would present the same question in more neutral and less inflammatory terms, as the Court’s decision did. As Scalia and Garner remind us, “you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable.”[4]

 

[1] Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).

[2] Richard A. Posner, Law and Literature: A Misunderstood Relation 305 (1988) (quoted in Scalia and Garner, supra note one, at 84).

[3] Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

[4] Scalia and Garner, supra note 1, at 84-85.

Characteristics of the Best Appellate Advocates

The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.

1.    They are highly intelligent and analytical.

The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.

2.    They have the intangibles.

The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.

3.    They are objective in assessing the merits of an appeal.

The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.

4.    They know how to select issues for an appeal.

The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.

5.    They are exceptional writers.

The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.

6.    They are outstanding oral advocates.

The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.

7.    They are extremely thorough and methodical.

The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.

8.    They are confident.

The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.

9.    They win.

As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.

Storytelling for Appellate Writing: A Few Tips on Using the Theory of the Case

In the most recent ABA Journal, Chris Arledge discusses how well storytelling can assist in many aspects of trial practice.  See Making Your Case:  Storytelling Problems and Solutions, 104 ABA Journal 16-17 (Aug./Sept. 2022).  Arledge’s interesting article on applying the craft of “other professional storytellers—like novelists, journalists, advertisers and filmmakers” to trial practice reminded me just how much our job as appellate advocates is storytelling.  See id.

 

In the appellate and academic worlds, we have many great books and even conferences on using storytelling to represent our clients.  See, e.g., LWI’s co-sponsored Applied Legal Storytelling Conference, https://www.lwionline.org/conferences/eighth-applied-legal-storytelling-conference.  If you are just starting to incorporate storytelling into your writing, I recommend consulting these resources.  In addition, I can share some tips that are popular with my writing students to hone your organization by using key tenants of storytelling to connect all parts of your briefs.

First, make sure you take the time to write out a specific theory of the case.  Using storytelling well, either in objective inter-office memos or persuasive external writing, requires a writer to truly understand the theory of the case.  Often, my students with large scale organization issues struggle to state their theories of the case.  Integrating one theory from an introductory “hook” through a compelling Statement of the Case and to a cogent Discussion requires consistent use of the same girding theory.

Second, distill your points into an “elevator story,” not just to persuade, but to explain the problem and give your suggested solution using storytelling.  Lately, I have asked students to create an elevator story of a one-minute oral summary of their Discussion or Argument sections.  I explain I am not just asking for a persuasive “pitch,” but want a true summary of their points.  If they cannot do the story in one minute or less, I suggest they go back to their outlines, look for an overarching idea they can use as the theory of the case, and then apply that theory to all parts of their papers.  Once writers have a strong theory of the case, they can much more easily use ideas of character and climax from storytelling.

As appellate writers, our job is to tell the story of what went well, or poorly, at trial, and to show how our suggested result will give our story the desired result.  Stressing your theory of the case as the connection between all parts of your writing will help you employ storytelling more deftly to reach that happy ending.  

Providing Fresh Perspective at Oral Argument

Common wisdom holds that an advocate can lose a case at oral argument, but rarely prevails at the argument. By providing a wrong or weaker answer than expected, an otherwise allied judge might rethink support of a position. However, it is rare that an advocate can provide an unexpected basis to win over a judge committed to the other side. Even as he claimed that oral argument makes a difference, Chief Justice William H. Rehnquist admitted that only in a “significant minority of cases” had he changed his mind after hearing argument.[1] A recent personal experience in oral argument has made me think about the difficulty of breaking through to judges whose minds were made up before argument.

In this instance, in a trial court hearing a motion to dismiss, one question from the judge indicated that he had misunderstood the pleadings and our brief. He explained that the scenario contemplated by this declaratory judgment action would never come up in real life. Even though I responded with an entirely different fact pattern consistent with the pleadings and past experience, it had no impact. The argument ended with the judge picking up a sheet of paper and reading his pre-typed ruling from the bench. Whatever doubt I may have planted with my unanticipated response evaporated as the preconceived result, memorialized on paper without regard to the oral presentations, prevailed.

I’m convinced that nothing I might have said at oral argument would have made a difference. The “crutch” of a written decision prepared in advance was too much to overcome. Still, it demonstrated the importance of briefing to make oral argument worthwhile. Anticipating the judge’s confusion about the practicalities of our position with a more pointed explanation would have provided at least a fighting chance to change the judge’s mind when it was still open to how the challenged statute and the plaintiffs’ dilemma operated in real life. However much I thought our brief made that plain, it was only as I prepared for oral argument that I realized a better way of framing the factual predicate to my legal argument – and that’s what I explained before the judge.

On the other hand, another recent case provided greater confidence that oral argument can have influence. Lengthy majority and dissenting opinions struggled with crediting or rebutting a point made during the argument. What was said had an obvious impact and forced judges of vastly different views to contend with it.

Judges may have strong reactions in some cases or even in all cases to their understanding of what the case is about, making the job of dissuading them from a view that works against your position difficult, if not impossible. Nonetheless, an advocate should always assume that judges have sufficient impartiality so that oral argument can help shape the opinion, if not persuade, even while crafting a brief that lays out the argument clearly. That is one reason I like a hot bench. Rather than give an oration, I am more interested in arguing about what the judge indicates is important – and perhaps providing a new insight that wins the day.

 

[1] William H. Rehnquist, The Supreme Court 243 (2001).

Agency Deference and Statutory Interpretation

Courts often defer to administrative agencies on matters that require the agency’s specialized expertise. Yet even the embattled Chevron deference doctrine[1] puts the brakes on judicial deference sensibly when Congress has spoken on the matter. After all, the statute’s meaning must reflect legislative intent.[2]

Still, in defending the constitutionality of a statute, States will ask courts to read the statute more narrowly than its language supports, to avoid invalidation as applied to common situations. The Supreme Court has supplied advocates with precedent that should overcome these attempts to recast legislative language, particularly where free speech concerns predominate.

For example, in consolidated lawsuits in Susan B. Anthony List v. Driehaus,[3] two organizations brought facial and as-applied challenges to an Ohio statute that prohibited certain false statements made during a political campaign. The plaintiffs alleged that they intended to make statements that could be deemed false and then “face[] the prospect of its speech and associational rights again being chilled and burdened,” as it had when a complaint about their speech was previously filed.[4]

In holding that pre-enforcement standing existed, the Court found Babbitt v. Farm Workers[5] instructive. There, the plaintiffs challenged a law that proscribed “dishonest, untruthful, and deceptive publicity.”[6] The plaintiffs alleged that they feared prosecution because erroneous statements are “inevitable in free debate,” that they had engaged in past consumer publicity campaigns and any future campaign would be scrutinized for truthfulness, and that they had “an intention to continue” campaigns like the ones they had mounted in the past.[7] Notably, they did not claim that past campaigns were dishonest or deceptive or that future campaigns would be, or that any official action against them was likely or imminent. Still, Babbitt concluded that the “plaintiffs’ fear of prosecution was not ‘imaginary or wholly speculative’” given the statute’s language and allowed the case to proceed.[8]

Two other cases also informed the Susan B. Anthony Court’s analysis. Virginia v. Am. Booksellers Ass’n Inc.,[9] found a credible threat of enforcement to a law that criminalized the commercial display of printed material deemed harmful to juveniles. At trial, the plaintiff booksellers named “16 books they believed were covered by the statute” and how compliance to avoid prosecution would be costly.[10] In defense, Virginia contended that the statute was “much narrower than plaintiffs allege” and even conceded that the law would be unconstitutional “if the statute is read as plaintiffs contend.”[11] Nonetheless, the Court found no reason to believe the “newly enacted law will not be enforced” and that one plain harm is “self-censorship; a harm that can be realized even without an actual prosecution.”[12]

In the end, a reasonable reading of a statute based on its language and the lack of discretion an agency (or a court) has to re-write a statute, a purely legislative act, requires the appellate advocate to push back on agency attempts to recast plain language into a more defensible posture.

 

[1]  Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984).

[2]  Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

[3]  573 U.S. 149 (2014).

[4]  Id. at 155.

[5]  442 U.S. 289 (1979).

[6]  Id. at 302.

[7]  Id. at 301.

[8]  Susan B. Anthony, 573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302).

[9]  484 U.S. 383 (1988).

[10] Susan B. Anthony, 573 U.S. at 160 (describing American Booksellers)

[11] Am. Booksellers, 484 U.S. at 393-94.

[12] Id. at 393.

Putting the Audience First: The Writing Tactic of Restatement

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

Putting the Audience First:  The Writing Tactic of Restatement

In May, I wrote the post, Putting the Audience First:  A Perspective on Legal Writing.   In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document.  (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.)   In that post, I promised that June’s post would be about the tactics of an audience-first perspective.  Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness.  So, with apologies, here’s the post I promised for June.

Audience-First Perspective, Effective Writing Choices

In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them.  An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document.  As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs.  Ultimately, writers that meet audience needs are more likely to influence those audiences.  Accordingly, I suggested that the legal writer’s prime directive is this: 

 In a deliberate way and in every writing choice, put the audience first.

This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs.  One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.

Restatement as a Tactic of Audience-First Writing

Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both.  Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can

• Emphasize important ideas;
• Enable the audience to more easily remember important ideas;
• Clarify concepts that might be confusing to the audience; and
• Add a gloss on concepts or ideas that convey emotion or theme to the audience.

Signposts should accompany restatements.  Good signposts for restated information include

• In other words
• That is
• Stated another way.

Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)

Examples of Restatement from Appellate Briefs

Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission.  The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.”  Pay particular attention to what happens in the second sentence below:

Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.

This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool.  The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution.  In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex. 

So, why would a brief include a complicated quote?  One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers.  That might explain the quote in this brief.  Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia.  Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.

The brief keeps the original ideas in Wilson’s mouth, so to speak.  But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means.  In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:

Each branch, in other words, must ensure that the others stay in their constitutional lanes.

By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement.  Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do.  This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.

 There’s also an emotional valence to the restatement—this is the gloss.  The metaphor of staying in one’s lane gives a modern vibe to an old idea.  Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.

Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done.  This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise.  As such, the restatement provides less complex and more memorable language that has an emotional “feel.”

Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences.  Imagine the news headline that emphasizes the restatement:  Case asks whether branches must help others “stay in constitutional lanes.”  In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.

Here’s another example that presents a similar pattern of restatement.  This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.

Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks.  In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work.  The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too.  In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information.  But the brief does not allow that confusion to persist.  By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit: 

In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

Is there anything special about the “marketplace of ideas” as an element of restatement here?  Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911.  A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse.  For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.

Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience.  Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept.  In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here.  The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.

The Recap

Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences.  Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts. 

What do you think about restatement?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected]

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

Tackling a New Area of Law on Appeal Without Fear

Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.

In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.

Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.

A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.

In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.

The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.

 

[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).

In Praise of Bryan Garner’s Approach to Minimizing Passive Voice

Many of my students believe I “prohibit” any use of passive voice.  I certainly discourage passive voice, especially in objective writing.  As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity.  As Bryan Garner explained in his 2019 Michigan Bar Journal piece:  “Stylists agree” passive voice is “generally weaker than active voice.  It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.”  Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34  (Dec. 2019).   

However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.”  Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).”  Id. at 34.

As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice.   Garner asks us to count the passive voice examples in this passage:

In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.

Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.”  Id. at 35.   Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.   

I especially like Garner’s explanation:  “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).”  Id.  Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.”  Id. 

This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point:  “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).”  Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.”  Id.

Returning to the challenge passage, Garner says there are six passives:  “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.”  Id.  Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together.   Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.”  Id. 

Finally, I would ask students to re-write this passage, with the most direct language possible.  Students, and lawyers, can then compare their revisions to Garner’s: 

In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.

Id.  Garner removed what he calls “zombie nouns” along with passive voice, and made the  “reader’s job” much easier.  Id.  Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.

Too Many (Foot)Notes

In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”

While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”

Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.

Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.

A Few Thoughts on Dobbs v. Jackson Women’s Health

On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.

Below are a few thoughts on the decision.

1.    The majority was correct.

In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.

But the truth is the truth.

Roe was a terrible decision. The majority got it right.

The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air.[1] And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction.[2] Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.

The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections.  That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?

Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).

2.    Justice Roberts’ approach was sensible but not principled.

Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.

This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.

Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.

3.    Justice Kavanaugh’s concurrence was surprisingly misguided.

In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.

The Court did not return to a position of neutrality.  Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services.  In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.

So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.

This is not to say that appointing conservative justices – and originalists – is a bad thing.  Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.

Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[3] That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.

Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.

4.    Justice Thomas went too far.

With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.

This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).

This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.[4]

But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services.  That’s not a world that most reasonable people want to imagine.

Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.[5]

Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.

5.    Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection                 Clause.

Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.

The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.

6.    Imagine where we’d be if the Court had embraced judicial restraint and deference.

If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.[6]

New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.

That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.

7.    Stop criticizing the Court

Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like.[7] Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy.  Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.”[8] He should be ashamed.

Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[9] Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.

 

[1] 381 U.S. 479 (1965).

[2] 505 U.S. 833 (1992).

[3] Id.

[4] See 381 U.S. 479 (1965).

[5] 576 U.S. 644 (2015); 766 F. 3d 648 (2014).

[6] See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN

[7] See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review

[8] Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill

[9] See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)

Miranda Warnings Are A Right Without A Remedy

Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.

In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.

Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.

Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.

Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.

What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.

Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.

Bluebooking

A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.

First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.

Next, as Professor Alexa Chew explains in Citation Literacy,[1] citations provide the law-trained reader with important information about the weight of the cited authority.[2] Is it binding or only persuasive? Is it a recent case or well-settled law?[3] Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.

Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.

That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.

Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).

 

[1] Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).

[2] Id. at 872-73.

[3] We’ll leave what “well-settled” law is for another day.

Arguing History

In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.

Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.

While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.

Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.

The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.

A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.

Where constitutional rights are at issue, history has become destiny.

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

Knowing When to Sit Down

Years ago, I witnessed a portion of an argument before the Supreme Court of India that was then in its third day with additional anticipated days of argument remaining. When I spoke to members of the Supreme Court bar afterwards, one experienced lawyer expressed astonishment that U.S. Supreme Court arguments were 30 minutes per side. How, he asked, is a lawyer going to “warm up” in that amount of time?

Last week, I argued a case in the Seventh Circuit. It rekindled memories of that trip to India, not because more than the usual amount of time was allotted, but because of how little time was needed. I represented the Appellee with 15 minutes of argument time. I was also in the unusual position of having three recent sister circuits ruling in favor of my position, along with more than 100 district court decisions. Even though I had suggested in my brief that argument would not further inform the court, oral argument was ordered.

My opponent was largely relegated to policy arguments. I planned three different approaches to my argument depending on how my opponent had faired. As expected, the Court was well prepared and pummeled my opponent with questions that could have come from my brief. He ended up using his entire 15 minutes responding to questions and reserved no time for rebuttal.

 As I stood at the podium, the presiding judge immediately asked questions about whether any circuit had issued new decisions on our issues since I had filed a 28(j) letter in March and whether any other similar cases from within the circuit were pending on appeal. When I answered no to both questions, I was finally able to introduce myself. While I used a small amount of time to add favorable precision to some statements made during my opponent’s time at the podium, the questions from the bench tended to focus on whether a narrow decision would be sufficient to affirm our motion for remand, where the defendant had removed claiming federal-officer removal, complete preemption, and an embedded federal question. I understood the panel’s questions to favor affirmance. As the questions wound down, I realized the court was satisfied and that no further argument was necessary. I simply said that, unless there were any further questions for me, I ask that the district court be affirmed.

When I did so, about seven of my 15 minutes remained. Using more time was both unnecessary and likely counterproductive. The judges also likely appreciated my decision to end the argument early. From my perspective, even though the decision is under advisement, the argument seemed to go very well – even if I had not had the amount of time to warm up!

A Few Commonsense Tips on How to Persuade Judges (and People)

It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.

1.    Keep it simple, talk like a normal human being, and get out of the weeds.

If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.

After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:

Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.

This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:

Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.

Again, this isn’t perfect, but you get the point. Keep it simple and direct.

2.    Address the court’s questions and concerns.

Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.

Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:

Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.

Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.

Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:

Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?

Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.

That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:

The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.

This response, although not perfect, responds directly to the justice’s concerns.

3.    Acknowledge weaknesses in your argument.

Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.

The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.

Whatever.

That was bad.

Very bad.

And very damaging to her credibility.

4.    Be passionate and emotional (when appropriate).

It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.

5.    Be likable and relatable.

This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

• • More from Bloomberg

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

• • More from SCOTUSblog

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

• • More from SCOTUSblog

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

• • More from the Sacramento Bee

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

• • Details HERE

Whither (wither?) Strict Scrutiny?

Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.”[1] And, courts have employed that strict scrutiny to content-based restrictions on free speech,[2] as well as burdens on fundamental rights under both due process[3] and equal protection.[4] It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.

However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability.[5] The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.[6]

Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment.[7] He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller[8] expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’”[9] 554 U.S. at 634.

Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”[10] Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric.[11] As he explains, if tradition represents the original public meaning, it duplicates what history provides.[12] If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”[13]

Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion.[14] He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.”[15] He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.”[16] He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.

The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’”[17] Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result.[18] Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen[19] before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.

So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.

 

[1] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

[2] See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

[3] Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

[4] See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).

[5] Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[6] Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).

[7] United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).

[8]  554 U.S. 570 (2008).

[9] Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).

[10] Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

[11] Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).

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

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

[14] Id. at *9 (Newsom, J., concurring).

[15] Id. at *10(Newsom, J., concurring).

[16] Id. at *11 (Newsom, J., concurring).

[17] Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).

[18] See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).

[19] No. 20-843.