Appellate Advocacy Blog

On May 30, 2024, a Manhattan jury convicted former President Donald Trump of falsifying business records with the intent to defraud voters in the 2020 election. The conviction involves, among other things, a non-disclosure agreement that adult film actress Stormy Daniels signed in 2016, which prohibited Daniels from discussing the alleged sexual conduct that, in 2006, occurred with her and Trump.

After the sentencing hearing, which is scheduled for July 11, 2024, Trump’s attorneys will file an appeal seeking to overturn the decision. Below is a brief discussion of the issues that Trump’s attorneys will likely raise on appeal, and a prediction of whether they will be successful.

1. The failure to remove Judge Merchan from the case.

Judge Merchan allegedly donated $15 to President Joe Biden’s 2016 election campaign and $10 to an organization called Stop Republicans. A state ethics panel subsequently cautioned Merchan against making such contributions to avoid the appearance of bias. Also, Judge Merchan’s daughter, Loren, works for Authentic Campaigns, a political marketing agency that serves Democratic political candidates, and for a time, Loren was Authentic’s president and Chief Operating Officer. Loren also allegedly displayed an image of President Trump behind bars on her Twitter page, which was later removed. Based on these facts, Trump’s attorneys requested that Judge Merchan be removed from the case. That request was denied.

Perhaps Judge Merchan should have recused himself, but whether he was legally required to do so is a different matter. Judge Merchan donated a small amount to Biden’s campaign eight years ago. Also, Loren’s job at Authentic does not mean that Judge Merchan, because of his daughter’s political activities, will be biased in the trial or have an actual or apparent conflict of interest.

Prediction: Unsuccessful.

2. The failure to change venue.

To many legal scholars and commentators, President Trump faced an uphill battle in this trial because Manhattan is a decidedly liberal city where over eighty-five percent of residents voted for President Biden in 2020, and where a bias toward Trump exists. Indeed, when jury selection began, half of those called for jury duty immediately stated that they could not be impartial in their deliberations. And of the twelve jurors selected, it is highly likely that the majority voted for Biden and harbored negative feelings toward Trump. Given these facts, Trump’s attorneys argued for a venue change, which Judge Merchan denied.

However, the law did not likely require a venue change. To hold that the political orientations of the jurors justify a change in venue in every or most cases would upend the jury system and make criminal trials incredibly inefficient. Every criminal defendant could argue that the political demographics of a county, city, or state justified a venue change. Moreover, a venue change would not guarantee that existing biases in another venue would be eliminated; also, jurors can certainly assess the facts and evidence objectively despite their political affiliations. Simply put, it is quite speculative to assume that jurors, who take an oath to be impartial and base their decision on the facts and evidence, would yield to and convict or acquit based upon their political biases. One should have more faith in the citizens of this country.

Prediction: Unsuccessful.

3. Judge Merchan’s decision to allow Stormy Daniels’ testimony.

At the trial, Stormy Daniels testified about a sexual encounter that she had with President Trump in 2006 and, in that testimony, she provided graphic details about the encounter that did not relate to any of the elements of the charges against Trump. Daniels’ testimony also contradicted her prior statements, where she denied that such an encounter ever occurred. Based on the explicit sexual details that Daniels provided in her testimony, the defense will argue that this testimony was unduly prejudicial.

But during the opening statements President Trump’s lawyer, Todd Blanche, told the jury that Trump never had a sexual encounter with Daniels, thus justifying the prosecution’s decision to call Daniels to refute this assertion, which was the alleged motive for the non-disclosure agreement. However, the graphic details to which Daniels testified, such as what President Trump was wearing, how long their sexual encounter lasted, and what sexual position he preferred (Judge Merchan sustained an objection to this part of the testimony), were unnecessary. Surprisingly, the defense did not object to certain portions of this graphic testimony, which prompted Judge Merchan to criticize the defense for not making such objections.

Regardless, as stated above, because Trump specifically denied having a sexual encounter with Daniels, the prosecution was justified in calling Daniels to refute this statement. The question on appeal, therefore, will turn on whether the lurid details that Daniels provided–and which were irrelevant to the prosecution’s case–were sufficiently prejudicial to deprive President Trump of a fair trial.

The answer is, most likely, no. The appellate courts will decide that this was a harmless error.

Prediction: Unsuccessful.

4. Judge Merchan’s evidentiary rulings.

Trump’s attorneys will argue that Judge Merchan’s evidentiary rulings reflected a pro-prosecution bias throughout the trial and compromised President Trump’s right to a fair trial.

Some of the objections that Judge Merchan sustained for the prosecution were questionable. For example, the way Judge Merchan limited Robert Costello’s testimony–not to mention his hostile demeanor toward Costello, calling him contemptuous and threatening to strike his testimony–was concerning. Of course, Costello did himself no favors by acting disrespectfully when Judge Merchan sustained one of the prosecution’s objections. You would think that a lawyer of Costello’s caliber would refrain from such conduct, which severely compromised his credibility.

Additionally, Judge Merchan also restricted the testimony of former Federal Election Commission Chairman Brad Smith, who would have testified that Trump’s payments to Cohen did not constitute a campaign finance violation. In fact, the restrictions were so significant that the defense decided not to call Smith, Furthermore, Judge Merchan allowed the prosecution to tell the jury that Cohen had pleaded guilty to a campaign finance violation – which was among the charges that Trump faced.[1] When Judge Merchan allowed this, he should have permitted Brad Smith’s testimony to refute the prosecution’s argument. Judge Merchan’s failure to do so is very problematic because it enabled the jury to think, “If Cohen pleaded guilty to a campaign finance violation, then Trump must be guilty too.”

Also, Judge Merchan’s decision regarding the permissible scope of cross-examination if Trump testified was troubling. Specifically, Judge Merchan ruled that the prosecution could ask Trump about the verdict finding him liable for defaming E. Jean Carroll, about the four-hundred-and-fifty-four-million-dollar verdict that Judge Arthur Engeron imposed in President Trump’s civil fraud trial, and about Trump’s numerous violations of Judge Merchan’s gag order. None of these questions related to the charges facing Trump, and allowing the prosecution to ask such questions was more prejudicial than probative. And these rulings played a significant role in Trump’s decision not to testify.

Judge Merchan’s decision regarding the scope of cross-examination may be problematic given the Court of Appeals of New York’s recent decision in People v. Weinstein, where the Court, by a 4-3 decision reversed the conviction against Harvey Weinstein on sexual assault charges. In that case, the Court of Appeals held that the trial court improperly allowed several women to testify that Weinstein had sexually assaulted them, even though Weinstein was not on trial for assaulting those women. As the majority stated, “[u]nder our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”[2]

To be clear, this is not to say that Judge Merchan was consciously biased against President Trump. It is to say that some of his evidentiary rulings, including when considering the Court of Appeals’ decision in Weinstein, might constitute reversible error.

Prediction: Possibly successful.

5. Whether Michael Cohen’s testimony should not have been given any weight by the jury, thus justifying a directed verdict for President Trump.

Michael Cohen was not a credible witness. He lied to Congress. He pleaded guilty to tax evasion and bank fraud (which were unrelated to Trump), which led to his disbarment and incarceration. He lied to a federal court. He called a deceased federal judge corrupt. He secretly recorded President Trump–his client at the time–during a meeting where they discussed the payment to Daniels. He stole thousands from the Trump Organization. And he lied to or omitted material information about an October phone call with Trump’s bodyguard, Keith Schiller. Also, during his testimony, Cohen blamed his legal troubles on being “knee-deep in the cult” of President Trump, showing that he lacked any sense of personal accountability. Lest there be any doubt about Cohen’s character, watch his belligerent rants online, where he states how much he wants Trump to go to prison while wearing a shirt depicting Trump behind bars.

Cohen had about as much credibility as those claiming that the government faked the moon landing or that Elvis faked his death.

Incredibly, however, the jury believed at least some of Cohen’s testimony because Cohen was the only witness who could testify to, among other things, Trump’s specific intent to defraud voters and promote or prevent the election of any person to public office.[3] Given that the trial occurred in Manhattan and that at least some jurors despised Trump, this should not be surprising. Moreover, although some commentators made much of the fact that there were two lawyers on the jury, this did not bode well for President Trump. One attorney, who moved to New York from Oregon, has lived in Chelsea for five years, which is notoriously liberal. The other lawyer worked as a civil litigator at a firm in New York City, and firms in New York City are overwhelmingly liberal.

Regardless, is the jury’s reliance on Cohen’s testimony a basis to reverse the decision? No. Jurors are given wide latitude to credit or discredit the testimony of a witness, and an appellate court will not second-guess the jury’s fact-finding.

Prediction: Unsuccessful.

6. The charge that Trump falsified business records.

Based on the evidence, the jury concluded that President Trump falsified business records. The facts suggested that after Stormy Daniels threatened to go public with her story, Cohen established a corporation, from which he paid $130,000 to Daniels after obtaining a home equity loan. Trump subsequently reimbursed Cohen for the money that he paid to Daniels.

President Trump’s accountant designated these payments as “legal expenses,” using a drop-down menu on a computer to make this designation. Why this designation was improper given that Trump made the reimbursement in connection with a legally enforceable non-disclosure agreement is unclear. And one can certainly question precisely how President Trump “caused” the records to be falsified—if they even constituted falsification. What’s more, the entries into the business records were made after the 2016 election. Thus, how can President Trump be found guilty of falsifying business records to promote or prevent the election of a candidate when the election is already over?

The appellate courts, however, will probably not focus on this issue because it will likely defer to the jury’s fact-finding.

Prediction: Unsuccessful.

7. Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

Judge Merchan allowed the jury to reach a non-unanimous verdict on the underlying crime(s) that elevated a misdemeanor barred by the statute of limitations into a felony.

To best explain this, consider the following examples: The crime of armed robbery typically requires a person to: (1) take the property of another; (2) without their consent; and (3) with the use of force. To obtain a conviction, all three elements must be satisfied. But the jury need not be unanimous on, for example, how the defendant used force. Some might conclude that the defendant used a gun, while others may conclude that the defendant used a knife. Unanimity on the underlying means is unnecessary if all jurors agree that the defendant used force because the use of force is the element that must be satisfied. Likewise, first-degree murder requires that the defendant: (1) intentionally; (2) kill another person. To convict, the jury must only agree that the defendant acted intentionally to cause the death of another person. It need not agree, however, on whether the defendant killed a person with a gun, a knife, or an ax.

The New York election law is different. It prohibits a candidate from: (1) promoting or preventing the election of a candidate; (2) by unlawful means. Unlike the robbery or murder examples, which specify the conduct needed to satisfy each element (e.g., the use of force), the New York law, in using the vague term “unlawful means,” does not delineate what conduct constitutes “unlawful means.” As such, the “unlawful means” element arguably permits a jury to choose among numerous crimes to convict the defendant without agreeing unanimously that the elements of any single crime were satisfied.

In President Trump’s trial, this is precisely what occurred. The prosecution stated in its closing argument that in deciding whether Trump was guilty of a second underlying crime, the jury could conclude that Trump violated campaign finance law, federal tax law, or engaged in additional falsification of business records. To make matters worse, Judge Merchan instructed the jury that they must only reach unanimity on which underlying crime was committed—not on whether the elements of any underlying crime were satisfied.[4]

In so doing, Judge Merchan permitted the jurors to convict Trump without unanimous agreement that the elements of any single crime were satisfied. Thus, if four jurors agreed that Trump was guilty of a federal campaign finance violation, four agreed that he was guilty of violating federal tax law, and four agreed that he was guilty of falsifying additional business records, Trump could be convicted. In fact, to date, we still do not know what underlying crime(s) the jury found Trump to have committed. This instruction arguably violated the United States Supreme Court’s decisions in Ramos v. Louisiana and Richardson v. United States.[5]

That instruction was a reversible error. And it may not be the only one.

By allowing the prosecution to proceed on an indictment that never specified the underlying crime that elevated the misdemeanor (falsification of business records) to a felony, the prosecution deprived President Trump of his Sixth Amendment right to know the nature of the charges that he was facing. That is precisely why, to this day, we have no idea what underlying crime the jurors reached an agreement upon.

That is the point – and the problem.

Additionally, the law upon which Trump was convicted–N.Y. Election Law 17-152–should be deemed unconstitutional because the term “unlawful means" is vague and essentially permits a jury to convict a defendant even if they do not agree on the underlying crime constituting the "unlawful means," and even if they do not agree unanimously that the underlying elements of any single crime have been satisfied.

Prediction: Successful.

***

One must wonder why these charges were ever brought. Convicting a former and possibly future president based on conduct occurring eighteen years ago, which involved an alleged “falsification of business records” that occurred eight years ago, is concerning. It suggests that the legal system is being weaponized against a political opponent. After all, if President Biden had engaged in this conduct, do you think that Manhattan District Attorney Alvin Bragg would have brought these charges? Of course not.

That, again, is the point – and the problem.[6]

Trump’s conviction will be overturned.

[1] Specifically, during its opening statement, the prosecution told the jury that “Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.”

[2] See Peter Sterne, Why Did New York’s Highest Court Overturn Harvey Weinstein’s Conviction? (April 29, 2024), available at: Why did New York’s highest court overturn Harvey Weinstein’s conviction? - City & State New York (cityandstateny.com)

[3] See N.Y. Election Law 17-152.

[4] Consider by analogy the following law: “It shall be unlawful to physically harm a person through unlawful means.” This would allow a jury to convict a defendant even if four jurors agreed that the harm occurred through kidnapping, four others agreed that the harm occurred through assault, and four others agreed that the harm occurred through battery. In such a circumstance, the jurors would not agree unanimously that the defendant’s conduct satisfied the elements of any single crime. That should prohibit a conviction.

[5] 590 U.S. 83 (2020); 526 U.S. 813 (1999).

[6] Recently, Judge Merchan notified the parties that, on May 29, 2024, a cousin of one of the jurors allegedly posted on a social media website stating as follows: "My cousin is a juror and says Trump is getting convicted! Thank you folks for all your hard work!!!!" See Ella Lee, Trump Hush Money Judge Flags Facebook User Claiming Early Knowledge of the Verdict (May 29, 2024), available at: Trump hush money judge flags Facebook user claiming early knowledge of verdict (thehill.com)

June 8, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (4)

Sunday, June 2, 2024

New Rules on Appealing Factual Findings under the Clear-Evidence Rule

Advocates usually face tough sledding if their appeal merely disputes factual findings. Those appeals confront the “clear-evidence” standard, a demanding test that requires the appellate court to find that the findings are not plausible given the evidentiary record. Appellate courts assume that trial courts have greater expertise in evaluating the facts because experiencing the presentation of the case in the living courtroom allows a judge to assess credibility, among other things, that a cold written record cannot convey.

In Cooper v. Harris (2017), the Supreme Court, in an opinion written by Justice Kagan, applied that rubric to uphold a three-judge panel’s decision that invalidated a North Carolina congressional redistricting plan under the “deferential standard of review” that applies to factual findings. The Court held that a “plaintiff may make the required showing [to demonstrate that race was the predominant factor in drawing district lines] through ‘direct evidence’ of legislative intent, ‘circumstantial evidence of a district’s shape and demographics,’ or a mix of both.” The decision distinguished an earlier favorable review of one of the same districts in Easley v. Cromartie (2001), because the majority read that decision to involve a particularly week evidentiary record of racial considerations that could only be overcome if the plaintiffs had offered an alternative map. That map would have to demonstrate that the legislators’ political goal could have been achieved without regard to race. In Cooper, the Court held sufficient strong evidence, including direct evidence, existed so that an alternate map was unnecessary.

Justice Thomas concurred, writing that the analysis in Cooper “represents a welcome course correction to this Court’s application of the clear-error standard.”

Justice Alito wrote the dissent. He asserted that the majority had treated the earlier precedent “like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash.” He labeled the absence of an alternative map “a critical factor in our analysis” in Cromartie and asserted its absence in the Cooper record required that North Carolina’s new map be upheld.

What a difference a few years and a few justices make! On May 23, the Supreme Court reinstated a South Carolina congressional map that the district court had found to be the product of racial gerrymandering. This time, the writers switched sides. Justice Alito wrote the majority opinion, Justice Thomas concurred with the new majority, and Justice Kagan authored the dissent. The majority’s treatment of the clear-evidence standard suggests a new wrinkle for the clear-evidence rule that likely affects a wide swath of cases.

In Alexander v. South Carolina State Conference of the NAACP, No. 22-807, the Court held that politics permissibly informed the map-drawing task even if the political motivation correlated with treating race as a predominant factor in the maps. Because the district court did not disentangle race and politics, the Court said, its findings of fact were clearly erroneous. To prevail on the racial-gerrymandering issue, the Court required a plaintiff to rule out the competing explanation of politics. It insisted, as it asserted Cromartie required, that a plaintiff would have to draw a partisan map consistent with the legislature’s intent to favor the dominant political party but with greater racial balance. In other words, the plaintiff had to do a better job of creating the same partisan advantage without evidencing any racial discrimination, a requirement that probably sounds the death knell for racial gerrymandering cases. The Court declared that the district court committed “clear factual error in concluding that race played a predominant role in the legislature’s design,” and the absence of an alternative map warranted an “adverse inference against the Challengers.”

The opinion further called the plaintiffs’ expert reports “deeply flawed” for much the same reason. The “tens of thousands of maps [produced] with differently configured districts” did not include “a single map that achieved the legislature’s partisan goal” of keeping the challenged districts Republican, the majority held.

In the majority’s version of the evidence, no direct evidence suggested the legislature’s map was drawn with a racial “target,” as the district court found. The Court also criticized the district court for “infer[ring]” that, by keeping the racial percentages in the districts the same as previously existed (17 percent), race played a predominant role in the districts’ shape. It noted that no map offered by the plaintiffs “would have satisfied the legislature’s political aim” without increasing the concentration of minority voters, which would have created a Democratic majority. Thus, the majority concluded the 17-percent standard was “simply a side effect of the legislature’s partisan goal” and not constitutionally suspect.

The majority also rejected the dissent’s criticism that clear-error review is essentially perfunctory, declaring that “appellants are entitled to meaningful appellate review” of factual findings.

Justice Thomas concurred but protested the searching factual review that the majority undertook because, in his view, it “exceeds the proper scope of clear-error review” and was unnecessary to resolve the case. It is worth noting that the bulk of the Thomas dissent argues against the Court’s involvement in racial gerrymandering cases altogether. Within that stance, Thomas criticizes a “boundless view of equitable remedies” that he traces to fallout from Brown v. Board of Education and the decision’s “impatience with the pace of discrimination,” seemingly treating that as an original sin, which may have been justified at the time but that has brought about “extravagant uses of judicial power” well beyond the “Framers’ design.”

Justice Kagan’s dissent mounted more withering criticism, starting with the majority’s portrayal of the plaintiffs’ evidence in only the “sketchiest of terms.” She pointed out that evidence established that the software used by the mapmakers was configured to show how any change in the district lines affected the district’s racial composition and achieved “to the decimal point” the exclusion of African-American citizens to accomplish their partisan goals. Perhaps more importantly for appellate advocates, she accused the majority of abandoning the clear-error standard that substantially defers to plausible factual findings, by choosing the evidence that supports its preferred outcome, “ignores or minimizes less convenient proof,” and errs in its reading of expert opinions, while asserting a better understanding of the evidence than did the three-judge district court.

Kagan’s critique also asserts that the majority’s new clear-evidence rule defers, not to the district court, but to the losing defendant because the majority interposed a presumption that legislatures act in good faith. She adds that the alternative-map requirement constitutes a new invention by the majority, in whose absence an adverse inference is drawn “no matter how much proof of a constitutional violation [plaintiffs] otherwise present,” describing this as judicial “micro-management of a plaintiff’s case . . . elsewhere unheard of in constitutional litigation.” She then suggests that the majority opinion is an adoption of Justice Alito’s dissent from Cooper so that the “dissent becomes the law.” Only in that dissent, she points out, did an alternative map requirement receive support before. She also lambasted the majority for reformulating her own majority opinion in Cooper.

The bottom line outside the context of gerrymandering cases is that the majority endorsed a more powerful review of evidence by appellate courts, particularly when legal presumptions exist that support the appellant, creating a level of deference to their evidence over that found by the district court. Any advocate seeking clear-evidence review should now search for favorable presumptions that would support greater appellate scrutiny of the evidence.

June 2, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (3)

Sunday, May 26, 2024

Is the United States Supreme Court a Political Institution?

[1] PolitiFact | Despite popular misconception, Supreme Court 9-0 rulings are not that rare

Public opinion of the United States Supreme Court has declined recently, with some commentators arguing that the Court is a political institution. Below is a brief analysis of why the Court is perceived as political, and how the Court can avoid this perception in the future.

A. Is the Court a “political” institution?

When one labels the Court as a “political” institution, how is “political” being defined? For this article, “political” is defined as reaching decisions that coincide with a justice’s policy preferences. This does not mean, of course, that a decision coinciding with a justice’s policy views is inherently political, or that the justices are basing their decision on political considerations, as there may be legitimate textual or statutory bases to reach those decisions. Notwithstanding, public perception of whether the Court is acting in a political capacity is often influenced by whether the Court’s vote in particular cases split along ideological lines.

Given this definition, is the Court a political institution? Yes and no.

To begin with, most of the Court’s cases do not involve divisive social issues. Rather, they involve issues such as choice of law provisions in maritime contracts, trademark issues, the bankruptcy code, the takings clause, and the Federal Arbitration Act. Such cases do not result in decisions that most people would consider politically motivated.

Furthermore, the Court’s cases are often decided unanimously or by six, seven, or eight-member majorities. From 2008 to 2019, for example, the Court’s unanimous decisions ranged from thirty-six to sixty-six percent of its cases.[1] Conversely, the percentage of 5-4 decisions ranged from five to twenty-nine percent.[2] Rulings with six, seven, and eight-member majorities ranged from twenty to fifty-one percent.[3] Additionally, in 2021, the Court reached unanimous decisions in sixty-seven percent of its cases, and in 2022, the Court was unanimous in forty-eight percent of its cases.[4]

Therefore, in most cases, politics does not likely influence the Court’s decisions. As such, in most cases, are the justices basing their decisions on their political preferences? No.

***

However, this does not end the inquiry. In the relatively small number of cases that involve divisive social issues, whether the Court’s decisions were political depends on your perspective. For example, many conservative legal scholars would consider Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges to be political decisions, because in their view they were based on an interpretation of the Fourteenth Amendment that had no basis in the Constitution’s text, and that resulted in outcomes consistent with the liberal majority’s policy views regarding contraception, abortion, and same-sex marriage. Likewise, many liberal legal scholars would consider Bush v. Gore, Dobbs v. Jackson Women’s Health, and Students For Fair Admissions v. Harvard to be political decisions because in each case, the Court’s majority was comprised of conservative justices.

The point is that, in a small number of cases, the justices’ opinions consistently reflect their political views, regardless of whether they are conservative or liberal. Thus, to the extent that the Court is perceived as a political institution, both conservative and liberal justices bear some blame. Consider the following:

Would Justice Elena Kagan, Justice Jackson, or Justice Sotomayor ever vote to restrict access to abortion?
Would Justice Thomas or Justice Alito ever vote to restrict when the death penalty can be imposed?
Would Justice Sotomayor and Justice Jackson ever vote to invalidate an affirmative action policy?
Would Justice Thomas or Justice Alito ever vote to restrict partisan gerrymandering?
Would Justice Kagan or Justice Sotomayor ever hold that the Constitution does not protect the right to same-sex marriage?

The answers to these questions should be obvious.

To make matters worse, when the political affiliations of the Court’s members change, the Court’s view of the Constitution – and fundamental rights – often changes. For example, for nearly fifty years, Roe v. Wade, where the Court held that the right to privacy encompasses a woman’s choice to terminate a pregnancy (in most instances), was considered settled law, particularly after the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe’s central holding. But after Justice Kavanaugh replaced Justice Kennedy, and Justice Barrett replaced Justice Ginsburg, the Court in Dobbs overturned Roe and suddenly discovered that the Constitution did not protect a right to abortion.

Why was Roe overturned? Because the Court now had more conservative than liberal members. One must wonder how the majority could not possibly realize that their decision would be perceived as purely political. The same goes for the justices who voted in Roe to find that the Constitution protects the right to terminate a pregnancy – a right found nowhere in the Constitution.

Cases such as Roe, Obergefell, and Dobbs show why the Court is perceived as a political institution and why its institutional legitimacy is affected negatively. Indeed, when the Court accepts for review cases involving issues such as abortion or the death penalty, most people know exactly how the justices will vote. They know that the justices will reach outcomes that so conveniently comport with their policy preferences. That is the reality, and even if it is not accurate, it is the perception. And perception is reality.

Additionally, conservative and liberal media commentators worsen the situation because they report on only the most controversial cases and, depending on the result that the Court reaches, promote the distorted perception that the Court is primarily a political institution. This is a recipe for undermining the Court’s legitimacy.

Ultimately, in Griswold, Roe, Obergefell, and Dobbs, were most justices basing their decisions on their political preferences? Yes.

B. Solutions to increase public perception of the Court’s legitimacy.

Regardless of the Court’s many unanimous and super-majority decisions, its decisions in cases such as Roe and Dobbs undermined the Court’s legitimacy. Is there a solution that could help to restore that legitimacy? Below are two suggestions.

1. Deny certiorari unless the challenged law likely violates the Constitution’s text.

The Court should not grant certiorari unless a challenged law likely violates the Constitution’s text – not its “penumbras” or whatever unenumerated “right” that the substantive due process might invent. For example, in Citizens United v. FEC, did the First Amendment’s text clearly support the invalidation of a statute that strived to reduce the influence of money on federal elections? In Clinton v. New York, did the Presentment Clause clearly support invalidating the Line-Item Veto Act, which sought to reduce wasteful government spending? In Kennedy v. Louisiana, did the Eighth Amendment clearly prohibit the imposition of the death penalty for individuals who raped children under the age of twelve? In Roe v. Wade, did the Fourteenth Amendment clearly prohibit states from prohibiting abortion?

The answer is no.

So why did the Court decide these issues for an entire nation, often by a 5-4 vote? Your answer is as good as mine. Unless you believe that the Court should be guided by “evolving standards of decency that mark the progress of a maturing society.”[5]

When the Constitution is ambiguous and subject to alternative interpretations, the Court should not intervene. It should allow the states to resolve these issues democratically or, in the case of federal legislation, defer to the coordinate branches. When nine unelected and life-tenured judges decide an issue for an entire nation, especially by a 5-4 margin where the majority’s decision so conveniently aligns with the justices’ political beliefs, you have a recipe for disaster.

If you believe that this suggestion is unwise, consider Chief Justice Roberts’ opinion in National Federation of Independent Investors v. Sebelius and what may have motivated his decision.

2. Require a six-vote super-majority to overturn a lower court decision.

When the Court decides cases by a 5-4 vote, and those votes reflect little more than partisan division, that decision is likely to undermine the Court’s legitimacy. Put differently, should the law for an entire country depend on a one-vote majority at the Court, where those votes align with each justice’s policy preferences? No.

Instead, to overturn a lower court decision, the Court should be required to reach a six-vote super majority. Doing so would encourage compromise, consensus, and moderation, and lead to incremental, not drastic changes in the law. And it would prohibit a bare liberal or conservative majority from changing the law for an entire nation, particularly on divisive social issues. Indeed, had a six-vote supermajority been in effect when Dobbs was decided, abortion would still be legal until fifteen weeks of pregnancy. If a six-vote supermajority had been in effect when Citizens United was decided, money would likely not have the corruptive influence in politics that it does today.

Some might argue that this approach would prevent the Court from resolving circuit splits on matters of public importance. So what? There are many circuit splits where the Court denies certiorari, thus leaving them unresolved. We should not pretend that the Court’s responsibility is to resolve every circuit split or injustice that affects the country because the reality is quite the opposite. Furthermore, if there is a circuit split, such that the law is interpreted and applied differently in different states, why is that necessarily undesirable? This is already the norm, not the exception, and the incredibly small number of cases that the Court decides each term has only a marginal impact on that reality. And if you believe that the Court should defer to democratic choice at the state and federal level when the Constitution is ambiguous, a six-vote supermajority requirement would facilitate achieving that objective – as would an originalist approach to constitutional interpretation.

If the Court had less power, and intervened less often, the people, not nine unelected justices, would have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[6]

***

Attacks on the Court’s legitimacy reflect little more than disagreement with decisions that conservatives or liberals do not like. As Justice Kennedy stated, “[a]n activist court is a court that makes a decision you don't like.”[7] The conservative and liberal media – and politicians – do a terrible disservice when they attack the Court with inflammatory comments that influence the public’s perception of the Court’s legitimacy. Having said that, if the Court wants to shed the perception that it is a political institution, it should stop deciding cases that are so politically divisive. Along with a super-majority requirement, this will help to insulate the Court from attacks on its legitimacy, however unfair such attacks may be.

[2] See id.

[3] See id.

[4] Michael D. Berry, The Numbers Reveal a United Supreme Court – And a Few Surprises (Aug. 2, 2023), available at: The Numbers Reveal a United Supreme Court, and a Few Surprises | The Federalist Society (fedsoc.org)

[5] Trop v. Dulles, 356 U.S. 86 (1958).

[6] Lawrence v. Texas, 539 U.S. 558 (2003).

[7] CBS News, Justice Kennedy: Senators Focus on Short-Term (May 14, 2010), available at: Justice Kennedy: Senators Focus on Short-Term - CBS News

May 26, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, April 27, 2024

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1. Have a strong introduction.

Make a great first impression with a strong introduction. Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2. Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3. Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4. Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5. Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6. Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7. Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8. Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

April 27, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, April 21, 2024

Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).

April 21, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Saturday, April 20, 2024

An Argument Against Block Quotes

Recently, I saw a long listserv conversation about teaching first-year and LLM students to properly format block quotes. You might remember from your law review days that block quotes are long quotes of “fifty or more words.” See The Bluebook, Rule 5.1. Under The Bluebook and other citation manuals, we must set block quotes apart from other text, usually in a single-spaced block of text double-indented from the left and right, with no quotation marks.

Apparently, word processors have made it more difficult to do the left and right indenting needed for block quotes, and the original listserv poster asked for advice on helping students manage block quotes efficiently. Having noticed the way our Typepad blogging system makes simple indenting more difficult now, and having banned my students from using most block or other long quotes for years, I was intrigued by this thread.

Some professors on the thread suggested using quotation marks, even in a block quote, to deal with indenting difficulties. Other professors offered great tips on various word processing program shortcuts and macros to help students properly indent their long quotes. However, some contributors asked if teaching the format was worth the investment of class time. The original poster later gave us all a summary of the info gained from the post, and explained that the majority of commenters suggested taking some class time to teach students a tech shortcut.

To my surprise, I did not see any comments suggesting students simply break apart the quoted material into shorter, more digestible portions for the reader. Thus, I acknowledge that I might be an outlier here. Plus, a block quote is much easier to insert into a document–with mere cutting and pasting–than carefully crafted sentences with smaller pieces of the quoted material. Nonetheless, I ask you to consider clarity and word limits (hopefully in that order), and ban most block quotes from your writing.

First, think about how often you have actually read the material in a block quote. Be honest. If you are like many readers, you tend to skim tightly blocked text, like long brief point headings and block quotes. See https://proofed.com/writing-tips/5-top-tips-on-how-to-write-for-skim-readers/. Even style manuals allowing the use of block quotes give many tips on how to make sure your reader still gets your point, despite the block quote. For example, Bryan Garner’s The Redbook Rule 8.10 suggests that we always introduce a block quote with our own assertions, and let the block material simply support our claims. Just removing the block entirely will increase your chance of the reader truly seeing your ideas.

Next, think about the lack of clarity from fifty or more words from one source at one time. Is the material you need from the quote really just on one point? If so, you likely do not need fifty words or more from the source, added to your own introduction and analysis. Consider placing the key parts of the quote, likely five to ten words, in your own sentence. Additionally, if your rationale for using the long block is to cover several points at once, you might be asking too much of your reader. Your reader will better understand two or three shorter sentences, each with one main point and a relevant short part of the former block quote.

Finally, look for extra words in the block quote that you don’t need for your point. Long block quotes are just that; these blocks are long pieces of text that often devour your word count without adding meaningful content. My students spend a huge amount of time railing against word limits. Nonetheless, we know word limits are part of any appellate practice. Thus, I suggest removing long quotes and keeping only what you need. Sure, you could keep the quote and add ellipses, but too many ellipses are distracting. See also Jayne T. Woods, The Unnecessary Parenthetical (“Parenthetical”) (April 9, 2024) (explaining research on the way unneeded parentheticals mid-sentence distract readers). Rather than obscuring your point in a closely-typed long quote with jarring ellipses, use your own words to present the ideas, working in key short quoted phrases.

Of course, you might have an instance where the clearest and shortest way to convey your point truly is a block quote. For this reason, I ban most, not all, block quotes. I urge you to do the same.

April 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, March 9, 2024

Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity. We can also use careful verb choice to help remove bias. Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.” See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing. One concrete way to eliminate bias is to choose verbs carefully.

We know from social science that our verbs matter. For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs. See https://www.simplypsychology.org/loftus-palmer.html. Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars. Loftus and Palmer manipulated the verb used in the question. They asked the groups: “How fast were they cars going when they smashed/collided/bumped/hi /contacted?” Id. Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph. Id. In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more. See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008). For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.” When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food. Thus, by removing the passive verb construction, we also decrease bias.

Case law also shows how passive voice can create issues. For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines. The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.” Id. at 1183-84. The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.” Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second. Id. at 1185.

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’ Id. According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’” However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.” Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing. The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.

March 9, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, February 25, 2024

Lessons in Advocacy from the Trump v. Anderson Oral Argument

Oral argument in Trump v. Anderson, the ballot eligibility case from Colorado pending in the Supreme Court, received enormous public attention – as well as attention from other contributors to this blog. Regardless of what you think of the merits of the case (I filed an amicus brief on behalf of Professor Kermit Roosevelt of the University of Pennsylvania Law School that I will describe at the end of this post), the pre-argument assessment of the University of Texas law professor Steven Vladeck seemed accurate: constitutional law was likely to give way to constitutional politics. In this post, however, I want to focus on the oral argument. Despite how well the advocates did on many levels, the difficulty of the case and the predisposition of the justices made some responses surprisingly insufficient.

Former President Trump’s counsel, Jonathan Mitchell, benefited from a heavy dose of softball questions – and little follow up as it became obvious early on that he would prevail, even if not on any ground he argued. He had chosen to rely heavily on the argument that the presidency is not an office subject to disqualification under the Fourteenth Amendment. Justice Kagan prefaced one question by declaring that she could think of many good reasons why those who wrote Section 3 would want to cover the presidency, but wanted to know what rationale would support exclusion of it as a policy choice.

Mitchell’s response admitted that no good rationale exists to exclude the presidency but that the language probably represented some unknown compromise. He added, “In a compromise, everyone goes away miserable,” but that we have to follow the text, which he claims supports his view.

That response seems wholly unsatisfactory, built, as it is, on speculation that deserves no credit. As Mitchell otherwise conceded, “one would think, of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists. That’s the commander-in-chief of the Army.” Amicus briefs from history scholars established that the presidency was covered – and that no one supported a different view. Yet, Mitchell’s shrugging response got no pushback or further exploration by any justice. For a majority on the Court that usually insists on original public meaning, Mitchell’s explanation should have sounded hollow. The justices were similarly uninterested in diving deeper into the claim that it was impossible to assign a meaning to the term “insurrection.”

Jason Murray, who represented the voters who sought to knock Trump off the ballot in Colorado, faced a hostile bench. It is always difficult to respond to a Court set on reaching a result contrary to your position, even when the judges struggle to find a common rationale. Yet, one premise behind questions raised by Justice Kagan and Chief Justice Roberts required a response, where none was given. Both members of the Court stated as a fact that it would seem odd that the Fourteenth Amendment, intended to restrict the States, would empower a State to disqualify a presidential candidate, which then led them to raise difficult questions about state authority, which provides the most likely ground for reversal.

Murray did not challenge the underlying premise of their questions, however – and he should have. Certainly, to the extent that the Fourteenth Amendment imposed the privileges and immunities of national citizenship on States, required them to observe equal protection and due process, and, eventually, comport their actions with the Bill of Rights, the Fourteenth Amendment can be seen as restricting on State authority. However, at the same time, the Amendment empowered the state courts to enforce those same rights. A state court does not require congressional approval before it finds that a law or government action, federal or state, violates equal protection or due process. Why would that expectation be any different for any other part of the Fourteenth Amendment, including its disqualification clause? The Constitution always expected state judges and state courts to abide by the supreme law of the land and enforce its requirements. The extension of rights in the Fourteenth Amendment also necessarily empowered state courts to enforce it.

Moreover, as amorphous as the concept of due process remains after centuries of precedent stretching back to Magna Carta, why would state courts have any greater difficulty interpreting “insurrection” and applying it without congressional guidance. Yet, if congressional guidance was needed to assist with determining whether January 6 and Trump’s role in it amounted to insurrection, ample expression of congressional thinking, both at the time of the Fourteenth Amendment’s ratification and today, exist. Briefs detailed the legislative history of the provision. And the January 6 Committee report was evidence in the trial on that score in a Colorado courtroom. Finally, a majority of Congress found that Trump’s actions on January 6 constituted an impeachable offense, even if the 57 Senators who voted that way were short of the two-thirds necessary for removal from office. Since only a majority is needed for the type of legislative guidance, which Mitchell told the Court was necessary as a result of Griffin’s Case, that majority, specific to the question in this case, existed, having heard evidence more comprehensively than when legislation is usually considered.

I have no illusions that this type of pushback would likely change the result. Much of it existed in the amicus briefs filed. Instead, simply as a matter of appellate advocacy, it seems important to make points like that in response to a court’s assumptions. It may have no effect, but it also could create some hesitation on the part of the Court to make sweeping but erroneous declarations in the opinion that is issued and create a precedent for what is too facile a reading of the Constitution.

N.B.: The amicus brief I filed largely addressed two issues. First, that the debate over whether Section 3 is self-executing misunderstands the inquiry. The Constitution and the Fourteenth Amendment sets standards to be implemented. No State shall deny equal protection or due process, for example. And no person who has taken an oath to support the Constitution (which logically includes those who took an oath to “preserve, protect and defend” the Constitution) and has engaged in insurrection shall hold office. The next question, then, is not whether Congress, which cannot enhance or diminish the Constitution’s command, puts it into effect, but whether a mechanism exists to bring an alleged violation before a court of law. Colorado election law provides such a mechanism, according standing to voters like the plaintiffs in this case.

Second, the brief addressed misunderstandings about Griffin’s Case. The case, in which Chief Justice Salmon Chase wrote the opinion while riding circuit, addressed whether a judge, who had served in the Confederacy and should not hold office under Section 3, could issue a valid criminal conviction and sentence. Chase’s narrow decision found that such a collateral attack on the judge’s authority could not be mounted in this case involving a manslaughter charge without congressional authorization. It did not suggest state law would suffice, likely because the case arose in Virginia which, at the time, had “no legal state government[]” under the First Reconstruction Act. Moreover, as was noted at oral argument and in other briefs, the framers of the Fourteenth Amendment, as well as Chase, agreed that Jefferson Davis was disqualified without congressional action from public office, including the presidency. Congress believed so too, because it was argued that the Amnesty Act of 1872 was flawed because its removal of disqualifications would allow a party to nominate Davis to the presidency or vice presidency.

Moreover, claims made during the oral argument that Griffin’s Case served as the basis for the Enforcement Act of 1870 ignore that the Act was drafted before the decision in the case and that key provisions were reenacted from an 1862 Act that predated the case, thereby undermining Mitchell’s claim that the 1870 Act created statutory preemption for State enforcement (even though it was repealed in 1948).

Still, with the decision seemingly preordained, my hope is that whatever opinion is issued does not fracture the history or establish background principles that like early interpretations of the Fourteenth Amendment skew its construction in ways that creates problems in the future.

February 25, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, February 18, 2024

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1. Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select.

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]

2. Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3. Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

February 18, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, February 17, 2024

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience. While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments. As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.” See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024). The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance. Id.

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts. See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024). According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders. Here is America First Legal’s misconduct complaint to the Seventh Circuit. Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders. Their letter is here. The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy.

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged. For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.” Raymond, Republican US Senators. Most court rules following the ABA’s resolution are facially neutral, but not all. See generally Buble, GOP Sens.

Whatever the fate of the three Southern District standing orders, experienced lawyers should work to be stronger mentors. We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs. In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time.

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Wednesday, February 14, 2024

Judicial Ethics Beyond the U.S. Supreme Court

Concerns about the absence of any applicable judicial ethics standards to justices of the U.S. Supreme Court grew into loud demands for an ethics code last year. The result was the adoption of a code largely consistent with the one applicable to federal judges generally, although it contained some important exceptions and also lacked any enforcement mechanism. As a result, recusal remains an individual decision for each justice with only vague and voluntary guidance.

Even though the rules may seem more clearly defined in other courts, surprisingly, issues remain. In 2009, the U.S. Supreme Court issued a decision in Caperton v. Massey, which applied the Fourteenth Amendment’s due process clause to judicial recusal. Brent Benjamin had won election as a justice to the West Virginia Supreme Court of Appeals. Substantial independent expenditures by a party in the case likely helped Benjamin’s candidacy. He nonetheless refused to recuse and argued that the money did not come to him, did not necessarily help his campaign, and did not affect his vote in favor of his so-called benefactor. Disagreeing, the U.S. Supreme Court ruled that the “risk of actual bias” was serious enough “based on objective and reasonable perceptions” that recusal was mandatory.

Although Caperton seemed to establish a standard that erred in favor of recusal, high court justices often determine for themselves whether they should be recused and adopt a personal standard. In one case I had in that same West Virginia court, I asked a justice to recuse himself after he had campaigned on a pledge to uphold the law I was challenging in remarks during his campaign to the group that had lobbied in favor it. He initially denied the motion for recusal, writing a statement about how he had First Amendment rights. Subsequent press coverage, quoting ethics experts who agreed that recusal was warranted, caused him to rethink his position and agree to recuse himself.

Today, the recusal issue is squarely presented in a case pending in the Ohio Supreme Court. Justice Joe Deters joined the Court a year ago after a career largely spent as a county prosecutor. The Court heard oral argument in State v. Glover on February 7. In a bench trial, a judge found Glover guilty of aggravated robbery and kidnapping after a crime spree in which he forced individuals at gunpoint to take him to an ATM, where he robbed them. The judge gave an aggregate sentence of 60 years for the multiple felonies with consecutive sentences. An appellate court found error in the sentence, ordering it reduced to an aggregate of 25 years. The State brought the case to the Ohio Supreme Court.

Justice Deters chose not to recuse himself, despite having served as lead counsel in the prosecution of Glover just two years ago. Ohio Rule of Judicial Conduct 2.11(a) requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Among the specific examples of circumstances warranting disqualification are: (1) having “personal knowledge of facts that are in dispute in the proceeding” and (2) the judge “act[ed] as a lawyer in the proceeding.”

Even though the issue is now a larger one than the underlying case and concerns the criteria applicable to sentencing when multiple crimes are committed, any decision will determine the length of Glover’s incarceration. It seems clear that Justice Deters has “personal knowledge of facts in dispute” and “act[ed] as a lawyer in the proceeding.” Moreover, the case was argued by Deters’s former co-counsel, which also requires disqualification. Given that the appearance of impropriety suffices to disqualify, the decision against recusal comprises an affront to due process. At oral argument, only Deters asked no questions. His silence, however, does not cure the problem.

As with Caperton, the potential exists for this case to land in the U.S. Supreme Court. If the Ohio Court of Appeals is reversed, particularly if Deters’s vote is decisive, Glover’s appointed counsel could raise Fourteenth Amendment due process objections. No one should miss the irony of a Court where recusal is entirely voluntary deciding when it should be mandatory for others.

February 14, 2024 in Appellate Court Reform, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, January 20, 2024

An Appealing Definition of Persuasion

Happy 2024! I hope you are off to a productive and healthy new year.

In my classroom, we started the new year with a move to persuasive writing. I began class with a discussion of some differences between argument and persuasion. My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division. Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.” We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.” See https://www.merriam-webster.com/dictionary/argument. Then, I suggested my definition of persuasion. I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.” We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts. (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.” See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference. Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients. On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion.

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing. Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.” https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2. Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching intro hooks, something I also stress in my persuasive writing teaching. However, I soon realized several of these students also wrote first drafts less focused on deep analysis. Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases. This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach. Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law. Their papers suggested a result on appeal based on their analysis of the facts only. In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample. Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases. Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly.

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write. As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

January 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, January 8, 2024

A Fascinating Interview with the Texas Supreme Court

By Tessa L. Dysart

What would you ask if you had the opportunity to interview a state supreme court justice? Would you ask about the justice’s path to the bench? How the justice writes a good opinion? What the justice does when he disagrees with his colleagues? How the justice works with his law clerks? Or maybe you would ask what the hardest thing about being a justice is?

How would those questions change if you were 9? Well, for Emily Caughey the questions wouldn’t change at all!

Last year then 9-year-old Emily came up with the idea to interview justices on the Texas Supreme Court. Her goal was to make a video that would teach kids about the judicial branch. She drafted serious questions, like the ones listed above, but also fun, kid-friendly questions. She also enlisted the help of her then 7-year-old brother James. The result is a delightful, well-edited video that includes interviews of five Texas Supreme Court Justices. According to her mom, Jennifer Caughey, a former Justice on Texas’s First Court of Appeals and the chair of Jackson Walker’s appellate section, Emily has “been sharing the video with schools in an effort to expose kids to the Texas Supreme Court.” Go Emily!

The whole video is worth watching. Highlights include learning what two justices aspire to the same superpower and what two justices both wanted to be professional baseball players. I also enjoyed hearing the justices’ fun facts about the Texas Supreme Court.

Thank you Emily for spearheading such an innovative project, and thank you justices for being generous with your time. For what it is worth my favorite ice cream flavor is Blue Bell’s Chocolate Peanut Butter Overload.

January 8, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, December 31, 2023

Worth a Read

As the year ends, developments at the Supreme Court – the revelations about judicial behavior that resulted in the adoption of a Code of Conduct and anticipation about what appears to be a momentous term – have dominated the world of appellate advocacy.

A few weeks ago, the New York Times published two fascinating pieces focused on the Court and its actions in Dobbs,[1] the 2022 decision that overturned Roe v. Wade.[2] One article, a revealing behind-the-scenes report on the acceptance and development of Dobbs, describes maneuvering undertaken by different justices to either accept or reject the case, including a calculation that delay will make the result more acceptable and a change of position on granting the petition. The article also covers the process of developing the opinion that leaked but remained largely intact when officially issued. The inside baseball described should interest any appellate advocate.

The second, a column by the inestimable Linda Greenhouse, discusses how Dobbs showed that the late Justice O’Connor erred in believing that judicial decisions are largely reactive and reflect an emerging social consensus. The op-ed also previews soon-to-be-published research about how the Supreme Court undermined its own reputation and authority by moving so far out of the mainstream in the same opinion. Both articles are well worth a read.

In many ways, the issues currently surrounding the Supreme Court do not have analogues among other courts, and the institutional concerns described in both pieces do not affect many of the decisions of even the Supreme Court. To be sure, some of the public’s flagging confidence and respect for the Court is a function of the ethics issues that have swirled around the Court, as well as growing public support for judicial term limits. Still, nothing dominates the public discussions like reactions to unpopular decisions.

What happens at the Supreme Court, unlike what happens in Las Vegas, does not stay there. It plainly affects the public view of the judiciary more generally. Recent surveys conducted on behalf of the National Center for State Courts show that the Supreme Court’s plunging public reputation has dragged down public confidence in all courts. The unfortunate result, though, is that discontent with the Court only fuels the current disrespect for the rule of law and our ability to function as a representative democracy at a time when democracy itself is threatened.

As officers of the court and as counsel familiar with the principles that undergird our system, we have an obligation to work to repair some of the damage done. Let’s dedicate ourselves with the approach of a new year to finding ways to restore respect and confidence in the rule of law.

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

[2] 410 U.S. 113 (1973).

December 31, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog. For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year. But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief. These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events. I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family. But just as I would start writing, a last-minute emergency or holiday engagement would take my time. Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year. Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft. Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024. I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work. I might even try to connect some of these lessons to holiday shopping and family time.

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, November 19, 2023

Legislatures, Initiatives, and the Courts

Commentators have long likened the legislative process to sausage-making, something that those with weak stomachs should not observe too closely. Nonetheless, courts have respected legislative decision-making by providing outsized deference to that body as the policymaker most likely to enact laws in accordance with popular sovereignty. When voters object to the decisions rendered, they can throw the rascals out, and different policy choices can then prevail.

Yet, legislators often seem to disapprove of voters who bypass them to enact laws or constitutional provisions by initiative – especially when it supports ends that the legislators oppose. At the moment, we see this playing out in Ohio. In light of the Dobbs decision,[1] which overturned Roe v. Wade[2] and declared that abortion was an issue that could be decided state-by-state, pro-choice voters have sought to enshrine a right to abortion in state constitutions through the initiative process in several states. To date, all have passed.

In Ohio, the legislature attempted to put up an obstacle in advance of the vote. It sought approval of its own initiative on a quicker schedule that would have increased the requirement for approval from a simple majority to 60 percent, as well as from 44 to 88 the number of counties represented in signatures to qualify for the ballot. That initiative failed. Then the secretary of state proposed language, approved by the state ballot board, designed to make the proposed amendment less desirable.

Nonetheless, the amendment was approved by voters earlier this month. Immediately after the election, Ohio House Speaker Jason Stephens claimed that “multiple paths” exist to prohibit abortion despite the constitutional amendment.”

Most troubling for those who believe in the rule of law and judicial independence is the proposal some Ohio lawmakers have advanced to strip the courts of the authority to review cases that would implement the newly passed constitutional amendment. They released a statement justifying this extreme measure by asserting, without demonstrating any basis for the claim, that “foreign election interference” tainted the vote. The election denialism that infected the last presidential election apparently provides fodder for undermining the courts.

Those courts are currently reviewing a constitutional challenge to a 2019-enacted six-week abortion ban that contains no exceptions for rape or incest. The constitutional amendment would appear to make invalidation of the ban a simple and straightforward inevitability. A jurisdiction-stripping bill, if valid, would prevent that possibility.

At stake is not only the status of abortion, but the authority of our courts – and the place of popular sovereignty in our representative democracy. Certainly, there are arguments against amending laws and constitutions through the initiative process. It can be overused, trivialize the law with popular but ill-considered or poorly drafted mandates, and has spawned an industry that raises and profits from the process. The same, however, can be said of the legislative process itself. While in place, the initiative, a product of progressives a century ago, still provides the rules that we are obliged to follow.

Ohio and the abortion issue is not the only time that legislatures have rebelled against voter initiatives. In 2018, Floridians approved an initiative to restore voting rights to people convicted of felonies and who had completed their sentences, excluding murderers and sex offenders. Months later, the legislature enacted a law that defined completion of a sentence as having repaid in full all fines and fees, even though that often could not be determined. The Florida Supreme Court, in response to a request of the governor while a constitutional challenge was working its way through the courts, read the new law as consistent with the amendment passed by initiative. Whatever one thinks of that conclusion, it conformed to a process that allowed the courts to determine the law.

My favorite example of a voter initiative and a legislature at loggerheads occurred in Massachusetts. In 1988, voters approved the Massachusetts Clean Elections Law, which created a system of public campaign funding for candidates who limited the private financing they accepted. The Massachusetts initiative provision required the legislature to fund it, but no appropriation was ever made. Plainly, legislators were not anxious to fund their challengers. Supporters of the initiative, including a candidate for governor, brought a lawsuit in 2001 to obtain the missing funding or void any election without public funding.

The Massachusetts Supreme Judicial Court held that the initiative, unless repealed, required the legislature to a money judgment in the amount that would provide the public campaign funding promised by the law, while the court would retain jurisdiction with a single justice assigned to assure that other eligible candidates also receive the money.[3] When the legislature dragged its feet in providing the funding, that justice threatened to execute on the Commonwealth’s property to assure that the funding would be forthcoming. The threat proved sufficient, although the legislature exercised its right to repeal the Clean Elections Law a year later.

Ohio’s legislature cannot repeal a constitutional amendment on its own. It could argue that the amendment should not be interpreted to invalidate its 2019 statute. What it should not do, if the rule of law is to prevail, is block the courts from construing the state constitution and measuring legislative acts against its restrictions.

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[2] Roe v. Wade, 410 U.S. 113 (1973).

[3] Bates v. Dir. of Off. of Campaign & Pol. Fin., 763 N.E.2d 6 (2002).

November 19, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Saturday, November 18, 2023

Welcoming Judge Ana de Alba to the Ninth Circuit

On Monday, the United States Senate confirmed President Biden’s nominee, Judge Ana de Alba, to the Ninth Circuit Court of Appeals seat left open when Judge Paul Watford resigned in May 2023. As the Ninth Circuit news release explained, “Judge de Alba has served as a district judge on the U.S. District Court for the Eastern District of California since July 2022, when she became the first Latina appointed to that court.” News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023. Before joining the Eastern District of California bench, Judge de Alba also served as a Fresno County Superior Court judge and a litigator in private practice. Id.

When she formally takes her seat at the Ninth Circuit, Judge de Alba will be the fourth Latina to serve on that court. Senator Alex Padilla told Law360: "The daughter of immigrants from Mexico, Judge de Alba's path to her confirmation to the Ninth Circuit today embodies the American Dream." Courtney Buble, Eastern District Of Calif. Judge Confirmed To 9th Circ., Law360 11/13/2023.

Similarly, the Chief District Judge for the Eastern District of California, Kimberly J. Mueller, offered “[h]earty congratulations to Judge de Alba! We are thrilled that the U.S. Senate has recognized her stellar qualifications and substantial experience as fully supporting her elevation to the federal appellate court.” News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023. Bloomberg Law reported that “three judges she served with on the Superior Court of California” found Judge de Alba “exceptionally well suited for appellate work” because “[s]he excels at research and writing, carefully and meticulously prepares for matters before her and approaches cases and issues with an open mind.” John Crawley, Latina Judicial Trailblazer Elevated to Largest Appellate Court, Bloomberg Law, 11/13/2023.

Judge de Alba will maintain her chambers in Fresno, where she has deep ties to the community. Born in Merced, California, Judge de Alba attended the University of California at Berkeley for her undergraduate and legal studies. As the Ninth Circuit press release explained, Judge de Alba has served on the board of many public interest and bar association boards in the Eastern District and throughout California. Judge de Alba has received service awards from the Rape Counseling Services of Fresno, Centro La Familia Advocacy Services, Central California Legal Services, and many more. Id.; see also Ben Shatz, New 9th Cir. Judge de Alba!, http://socal-appellate.blogspot.com/2023/11/new-9th-cir-judge-de-alba.html, Southern California Appellate News, 11/14/2023.

Welcome Circuit Judge Ana de Alba!

November 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

Sunday, October 22, 2023

A Majority Opinion Becomes a Dissent Disguised as a Majority Opinion

Sometimes, after an opinion is drafted, members of a court change their minds. It may be that the draft highlights something a member of the majority finds sufficiently troubling that the result should change. It may be that the draft opens the door to something a judge believes should be off the table.

One way that an outsider can tell that a judge lost the majority is when the dissent contains a fuller statement of the facts than the majority opinion. It suggests that the original majority opinion was turned into a dissent and the original dissent became the opinion of the court.

Something quite unusual in this regard took place in the Fifth Circuit earlier this month. The State of Texas filed an emergency appeal of a stay of execution for a death-row prisoner who challenged state statutes that precluded him from receiving DNA testing to establish his innocence of crimes that he was not convicted of but that qualified him for the death penalty because of presumed “future dangerousness.” The issue he raised was also pending in the Fifth Circuit in another case brought by a different inmate.

In this case, the inmate first argued that the court had no jurisdiction over the interlocutory appeal because the district court called its order a stay, rather than an injunction. The majority opinion, by Judge Leslie Southwick, quickly set that semantical issue aside, calling it “commonplace” that such jurisdiction existed and noted that the dissenting opinion “contains the same analysis, and we restate much of it here.”

Judge Jerry Smith, a member of that Court since 1987, dissented. His dissent begins with a strange and unique statement:

The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago.

In the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued.

What follows is an opinion that in look and feel appears to be a majority opinion written by Judge Smith and joined by all members of the panel. The opinion expresses the same pique evident in the second prefatory sentence before it about the courts’ indulgence of repeated appeals and a rejection of the merits of the prisoner’s case.

Judge James Graves specially concurred in the majority opinion. attachment of a proposed majority opinion drafted by Judge Smith. The opinion takes pains to rebut the dissent’s “proposed majority opinion,” which Judge Graves said he never joined. The detail in this concurrence suggests that it was originally a dissenting opinion, which succeeded in changing Judge Southwick’s mind, much to Judge Smith’s apparent consternation.

For an appellate advocate, the self-evident dynamics in the case makes the concurrence worth studying. It carefully parses the position of the original majority to demonstrate that it decides more than the case presents. Instead of looking to the validity of the laws that prevent use of DNA evidence to sentencing, which Judge Smith suggests is a losing proposition for the inmate, but that, procedurally, with another case under advisement raising the same issues, the district court did not abuse its discretion in staying the execution pending its disposition because there is no reasonable “basis to distinguish the present appeal.”

Perhaps if appellate counsel had limited the argument to the common-sense idea that a determinative case is pending, we might have seen a straightforward and brief opinion similarly supporting the stay without the odd display of internal friction at the court. This case is Murphy v. Nasser, No. 23-70005, 2023 WL 6814520 (5th Cir. Oct. 10, 2023).

October 22, 2023 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative