Appellate Advocacy Blog

The Journal of Appellate Practice and Process: Volume 25, Issue 1

The Journal of Appellate Practice and Process is a must-read for appellate advocates and judges. The latest issue is no exception. It begins with an article by Professor Michael J. Hasday titled Accuracy and the Robot Judge. This article explores whether it can be shown that robot judges are more accurate than human judges. The next article, Judging Class Certification as a Matter of Law, by Attorney Brian Sutherland suggests that courts should review class certification decisions as questions of law rather than as matters of discretion. In Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System, Jarrett B. Perlow, the Circuit Executive and Clerk of Courts for the Federal Circuit, shares data on federal court performance and quality measures. Professor Colleen Garrity Settineri's article In Conclusion, . . . " Are We Missing an Opportunity to Persuade? shares the first taxonomy of possibilities for the conclusion section of a brief. The issue concludes with two book reviews. The first,  The Case for a Casebook on Legal Writing: A Review of The Case for Effective Legal Writing, written by Justice Gerald Lebovits, reviews the first casebook on legal writing, The Case for Effective Legal Writing, by Professors Diana Simon and Mark Cooney. And Professor Sylvia J. Lett gives us Book Review: Reading the Constitution: Why I Chose Pragmatism, Not Textualism, a review of Justice Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism.

“My Bad,” but “Too Bad”?

I began writing this post Friday evening intending to discuss obligations of an attorney as an officer of the court and its intersection with the presidential attack on law firms. I toyed as well with explaining why an executive order is not law but seeks to implement existing law through obligations imposed on the Executive Branch, in spite of the considerably larger authority that recent executive orders suggest exist as a primer for appellate lawyers asked about them.

However, as I was writing, breaking news interrupted these thoughts. Earlier in the day, U.S. District Court Judge Paula Xinis issued an order that the defendants, who include the Secretary of Homeland Security, the Attorney General, and the Secretary of State, must return Kilmar Armando Abrego Garcia to the United States by Monday at midnight. I chose to write about this case for this blog because, as it plays out, it will say much about the truth-seeking function of our justice system, the efficacy of appeals, and the authority of courts to develop a remedy.

Abrego Garcia, a native of El Salvador, entered the U.S. illegally in 2011 at age 16, fleeing gang violence at home and joining his American-citizen brother in Maryland. Over the years in the U.S., he married an American citizen with two children and had another child with his wife. In 2019, he was targeted for deportation because of alleged MS-13 gang ties in New York, where he had never lived, and because he had tattoos and wore a Chicago Bulls hat, as well as a hoodie, which was deemed evidence of gang membership. He prevailed before the immigration judge and received an order giving him “withholding of removal” status in light of the threat of gang violence to him if he returned to El Salvador. The court order meant he could never be deported to the place of his birth.

When he was stopped by immigration authorities again last month, Abrego Garcia was returning home from work after retrieving his five-year-old autistic son from day care. Although he was not Venezuelan, he was shuttled off without a hearing to the mega-prison in El Salvador known as the Terrorism Confinement Center as part of the roundup of alleged Tren de Aragua gang members that is the subject of a different lawsuit pending in federal court in Washington, DC.

There are many concerning aspects to the legal case, including a substantial disconnect between what the Justice Department lawyer told the court and what the White House is saying. The court received a sworn statement from an acting director of the Enforcement Removal Operations that called Abrego Garcia’s deportation an “administrative error” and “oversight,” because they did not connect the “do not remove” order to him. The Justice Department lawyer conceded that Abrego Garcia should not have been deported but asked Judge Xinis for 24 hours to convince his client, the United States, to seek the prisoner’s return from El Salvador. She denied the request for a delay. Yet, in a filing earlier in the week, the U.S. sought to justify the deportation by claiming Abrego Garcia was a member of the El Salvadoran gang, MS-13. Without an offer of proof, the judge characterized the charge as “just chatter.” (On Saturday, ABC News reported that the Justice Department put the attorney on leave for a “failure to zealously advocate” for the government’s position; His supervisor was also put on leave for “failure to supervise a subordinate.)  

After Friday’s order to return Abrego Garcia to the U.S., White House deputy chief of staff Stephen Miller called Judge Xinis a “Marxist,” who “now thinks she’s the president of El Salvador.” White House press secretary Karoline Leavitt doubled down on the gang-membership claim by saying Abrego Garcia was convicted of being an MS-13 member and that she had seen the record of that, which was in ICE’s control. Vice President JD Vance echoed that stance. The assertion is particularly odd because a conviction would be a public record, and the only public record apparently shows the opposite result.

“We suggest the Judge contact President Bukele [of El Salvador],” Leavitt added, “because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” The latter comment is in line with the Justice Department’s earlier position that it has no control over El Salvador and what it does with the prisoners. It is a position that seems difficult to credit and at odds with the administration’s claim that El Salvador was holding these prisoners pursuant to a contract with the United States. Certainly, the U.S. had no difficulty obtaining El Salvador’s cooperation to stage a photo op at the prison for Homeland Security Secretary Kristi Noem earlier in the week.

As Abrego Garcia’s attorney, put it to Judge Xinis, the government’s position is “We’ve tried nothing and we’re out of options.” If accurate, that is not a position any judge is likely to tolerate.

Although the political actors in the White House are sounding defiant and have replaced their counsel in the courts, the Justice Department has appealed the order to the Fourth Circuit. The case seems unlikely to end there. How it proceeds from here will teach the appellate bar a great deal about the process we are part of, what is possible, and how the justice system works or doesn’t work more generally.  

“My Bad,” but “Too Bad”?

I began writing this post Friday evening intending to discuss obligations of an attorney as an officer of the court and its intersection with the presidential attack on law firms. I toyed as well with explaining why an executive order is not law but seeks to implement existing law through obligations imposed on the Executive Branch, in spite of the considerably larger authority that recent executive orders suggest exist as a primer for appellate lawyers asked about them.

However, as I was writing, breaking news interrupted these thoughts. Earlier in the day, U.S. District Court Judge Paula Xinis issued an order that the defendants, who include the Secretary of Homeland Security, the Attorney General, and the Secretary of State, must return Kilmar Armando Abrego Garcia to the United States by Monday at midnight. I chose to write about this case for this blog because, as it plays out, it will say much about the truth-seeking function of our justice system, the efficacy of appeals, and the authority of courts to develop a remedy.

Abrego Garcia, a native of El Salvador, entered the U.S. illegally in 2011 at age 16, fleeing gang violence at home and joining his American-citizen brother in Maryland. Over the years in the U.S., he married an American citizen with two children and had another child with his wife. In 2019, he was targeted for deportation because of alleged MS-13 gang ties in New York, where he had never lived, and because he had tattoos and wore a Chicago Bulls hat, as well as a hoodie, which was deemed evidence of gang membership. He prevailed before the immigration judge and received an order giving him “withholding of removal” status in light of the threat of gang violence to him if he returned to El Salvador. The court order meant he could never be deported to the place of his birth.

When he was stopped by immigration authorities again last month, Abrego Garcia was returning home from work after retrieving his five-year-old autistic son from day care. Although he was not Venezuelan, he was shuttled off without a hearing to the mega-prison in El Salvador known as the Terrorism Confinement Center as part of the roundup of alleged Tren de Aragua gang members that is the subject of a different lawsuit pending in federal court in Washington, DC.

There are many concerning aspects to the legal case, including a substantial disconnect between what the Justice Department lawyer told the court and what the White House is saying. The court received a sworn statement from an acting director of the Enforcement Removal Operations that called Abrego Garcia’s deportation an “administrative error” and “oversight,” because they did not connect the “do not remove” order to him. The Justice Department lawyer conceded that Abrego Garcia should not have been deported but asked Judge Xinis for 24 hours to convince his client, the United States, to seek the prisoner’s return from El Salvador. She denied the request for a delay. Yet, in a filing earlier in the week, the U.S. sought to justify the deportation by claiming Abrego Garcia was a member of the El Salvadoran gang, MS-13. Without an offer of proof, the judge characterized the charge as “just chatter.” (On Saturday, ABC News reported that the Justice Department put the attorney on leave for a “failure to zealously advocate” for the government’s position; His supervisor was also put on leave for “failure to supervise a subordinate.)  

After Friday’s order to return Abrego Garcia to the U.S., White House deputy chief of staff Stephen Miller called Judge Xinis a “Marxist,” who “now thinks she’s the president of El Salvador.” White House press secretary Karoline Leavitt doubled down on the gang-membership claim by saying Abrego Garcia was convicted of being an MS-13 member and that she had seen the record of that, which was in ICE’s control. Vice President JD Vance echoed that stance. The assertion is particularly odd because a conviction would be a public record, and the only public record apparently shows the opposite result.

“We suggest the Judge contact President Bukele [of El Salvador],” Leavitt added, “because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” The latter comment is in line with the Justice Department’s earlier position that it has no control over El Salvador and what it does with the prisoners. It is a position that seems difficult to credit and at odds with the administration’s claim that El Salvador was holding these prisoners pursuant to a contract with the United States. Certainly, the U.S. had no difficulty obtaining El Salvador’s cooperation to stage a photo op at the prison for Homeland Security Secretary Kristi Noem earlier in the week.

As Abrego Garcia’s attorney, put it to Judge Xinis, the government’s position is “We’ve tried nothing and we’re out of options.” If accurate, that is not a position any judge is likely to tolerate.

Although the political actors in the White House are sounding defiant and have replaced their counsel in the courts, the Justice Department has appealed the order to the Fourth Circuit. The case seems unlikely to end there. How it proceeds from here will teach the appellate bar a great deal about the process we are part of, what is possible, and how the justice system works or doesn’t work more generally.  

Welcome Retired Judge Mary Jane Trapp to the Blog

I'm pleased to share that Retired Judge Mary Jane Trapp has agreed to join the Blog as a contributor. Judge Trapp served on Ohio's Eleventh District Court of Appeals for twelve years. She also sat as a visiting judge on the Ohio Supreme Court. While in private practice, she attained an AV rating and also served as President of The Ohio State Bar Association.

You can read more about Judge Trapp here: Ret. Judge Mary Jane Trapp

Mastering Persuasive Advocacy: Essential Skills for Law Students and Lawyers

Developing strong persuasive advocacy skills—both written and oral—is a challenging process that requires dedication, resilience, a growth mindset, and a commitment to lifelong learning. Law students begin honing these skills early, navigating the complexities of trial and appellate advocacy through rigorous practice.

But how should law schools teach persuasive advocacy to ensure students develop the competencies necessary to represent clients effectively and argue convincingly before a court? Below are key strategies for law professors and students to maximize advocacy skills.

1.    Confidence Is Key

Persuasion starts with confidence. If you lack confidence, you won’t be persuasive or credible. Confidence isn’t something that can be taught—it’s a mindset that embraces self-assurance without arrogance. It’s the understanding that how you say something often matters more than what you say.

No one knows if you're nervous, anxious, or sleep-deprived before an argument. The key is to control your outward presentation. You don’t need to feel confident; you just need to appear confident.

2.    Don’t Practice Until You Get It Right—Practice Until You Can’t Get It Wrong

Great advocates prepare relentlessly. They know the factual record inside out, the case law better than the judges who wrote the opinions, and every possible counterargument. Preparation eliminates the fear of being flustered—because when you’re prepared for everything, nothing surprises you. The goal isn’t just to get it right—it’s to ensure you never get it wrong.

3.    Advocacy Is a Conversation, Not a Confrontation

Exceptional advocates treat oral arguments as a dialogue with the court, not a battle. Judges want to reach the right decision, and great advocates acknowledge their concerns while calmly and persuasively explaining why those concerns don’t alter the outcome.

They don’t react defensively to tough questions; instead, they see them as opportunities to reinforce their case. They adapt to the court’s concerns, acknowledge weaknesses without conceding their argument, and provide the judge with a path to rule in their favor.

4.    Think Before You Speak

Great advocates don’t rush to respond. They don’t talk just to fill silence. Instead, they pause, think, and craft a response that is clear, direct, and persuasive. A brief moment of silence is far better than a rushed, incoherent answer.

5.    Failure Is a Lesson, Not a Loss

Every great advocate has lost a case. What separates them from the rest is how they respond. They don’t dwell on failure—they learn from it. They recognize that setbacks are opportunities for growth, and they use every loss as fuel for improvement. In short, they never waste a failure.

6.    Self-Care Fuels Success

The best advocates understand that peak performance requires balance. They take care of their physical and mental health, eat well, exercise, and engage in activities that reduce stress. They cultivate relationships, take breaks, and embrace new experiences. They know that success in law is a marathon, not a sprint.

They don’t lie awake at 4:00 a.m. obsessing over their career trajectory. After a big win, they celebrate responsibly. After a tough day, they don’t drown their stress in junk food and TV marathons. In short, they prioritize well-being because they know it directly impacts their ability to advocate effectively.

7.    Control What You Can, Adapt to What You Can’t

Change is inevitable. Careers evolve, colleagues leave, relationships end, and unexpected challenges arise. Great advocates don’t resist change—they adapt. They focus on what they can control, confront problems head-on, and seek help when needed. They understand that perseverance, not resistance, leads to success.

8.    Great Writing Makes Great Lawyers

Exceptional advocates are exceptional writers. Persuasive writing is the foundation of advocacy because by the time you step into a courtroom, the judge has already read your brief and formed an opinion. The best advocates master the following:

• Crafting a compelling narrative
• Developing a persuasive theme
• Organizing arguments logically
• Writing concisely and with purpose
• Using precise, active language
• Addressing unfavorable facts and law strategically
• Eliminating unnecessary words, repetition, and embellishments
• Revising relentlessly

Great writing isn’t a talent—it’s a skill honed over time. And the best lawyers treat it as a lifelong pursuit.

Final Thoughts

Ultimately, great advocates focus on developing the whole person. They understand that true success isn’t just about winning cases—it’s about making an impact. Law students should remember this as they enter the profession: Don’t let external pressures dictate your path. At the end of the day, what matters most isn’t the accolades or the expectations—it’s the connections you make, the lives you touch, and the legacy you leave behind.

SCOTUS on Notice and the Current Constitutional Crisis

Alexis de Tocqueville, that trenchant observer of America from the Old World, recognized, even as long ago as 1835, “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Today, as in the past, we are witnessing the truth to that statement.

Playing out before us, we are seeing the dismantling of government structures, norms, and a challenge to the law that exceeds in scope and speed anything that has occurred in the United States in our lifetimes. The firing of federal workers without regard to their functions, abilities, performance, or statutory protections is occurring so rapidly that even those conducting the program admit they have made mistakes by discharging workers safeguarding our nuclear stockpile or preparing for a potential bird flu pandemic without knowing how to rehire them.

Fever dreams of reversing the New Deal and the Great Society are toppling federal agencies or their statutory independence with the eagerness of mobs who pulled down and beheaded an equestrian statue of King George III on the evening the Continental Congress approved the Declaration of Independence. Visions of imperialistic expansion and abdication of our leadership role within what was once called the free world are sending allies scurrying to insulate themselves from the fallout and bringing cheer to our adversaries.

In his 1776 call to action, Common Sense, Thomas Paine confidently wrote, “In America, the law is king,” throwing off the yolk of the king is law and claiming the Enlightenment principle as foundation here that no one stands above the law. Will it remain true? Will our experiment in constitutional government survive when the constitutional blueprint is set aside in favor of plenary presidential prerogative? In the midst of the Korean War, the Supreme Court held that Harry Truman did not have the authority to put aside a strike and keep the steel mills running. Lawsuits challenge many of the new administration’s initiatives. Just Security has posted a litigation tracker listing 83 lawsuits filed a month into the new administration. At some point, several cases will arrive at the Supreme Court’s steps and require the Court to articulate the limits on presidential power.

Keep in mind that executive orders are not law, but presidential directives within the executive branch that exercise existing legal authority to implement the law. An executive order cannot, for example, override the Fourteenth Amendment’s conveyance of birthright citizenship, even though one of the first ones issued this year attempted to do just that. Nor can it go beyond what Congress has authorized, as Joe Biden’s first attempt at student loan forgiveness was struck down.

When the Nixon tapes case landed at the Supreme Court, the president’s criminal defense lawyer declared that Nixon would only obey a definitive ruling from the Court. The statement, letting the president choose defiance if he decided that the public interest favored his position, laid down a gauntlet of potential disobedience. As we now know, the justices worked hard to issue a unanimous ruling with no room for doubt, which resulted in the release of the tapes. Congressional support for Nixon evaporated in light of the tapes’ revelations, and Nixon resigned in the face of certain impeachment and conviction.

Some in the administration, Vice President Vance, OMB Director Vought, and the man with the unlimited portfolio, Elon Musk, have advocated ignoring the courts or threatening impeachment of judges who would restrain unlawful presidential actions. We have already seen defiance of the law in the first days of the administration. Congress enacted a ban on TikTok while owned by a Chinese company, setting a January 19, 2025 date for the ban to go into effect absent a sale. On January 17, 2025, the Supreme Court unanimously upheld the law, which put severe penalties on the app and those how make it available unless it went dark. The administration, however, has chosen not to enforce it because the president, a one-time supporter of the law, now dislikes it and asserts that he will broker a deal or a takeover.

Despite its supposed national security implications, the TikTok issue may seem of little moment. The Republic likely will not fall if the law is ignored, particularly when other issues seem more momentous. Yet, it is the canary in the coal mine. It tells us how easily duly enacted laws validated by the courts can be set aside by a president more committed to his program than his constitutional obligation to “take Care that the Laws be faithfully executed” and his oath to “preserve, protect and defend the Constitution of the United States.” In fact, the president has proudly posted a headline about refusing to comply with a court order unfreezing federal grants and stating that he can violate the law if his objective is to save the country. It is a statement that recalls the Vietnam War justification that the military had to destroy the village to save it.

The Supreme Court knows these challenges are coming and undoubtedly understand that validation of an unconstitutional or statutorily prohibited aggregation of power will only spawn even more aggressive claims that the unitary executive theory extends beyond control of the executive branch to control over the entire government. It also understands that a nuanced decision is equally ineffective in stopping extra-constitutional assertions of authority. At the same time, a muscular decision, along the lines of the 1952 Steel Seizure Case, may be ignored, just as the TikTok ban was ignored. And, if the Constitution and the courts erect mere parchment barriers, then what could stop Donald Trump from overriding the 22^nd Amendment’s prohibition on running for a third term?

Appellate advocates have a role to play in preserving law as a barrier to authoritarianism. We must explain why these issues are important and why courts have the authority to restrain elected officials engaged in extralegal actions. Without public understanding and public support, the Supreme Court will falter or be nothing more than a quaint institution that has outlived its usefulness. It does not matter that one action or another does not personally affect us or most members of the public. As Sir Thomas More in “A Man for All Seasons” reminded us, you can cut down the laws to get after the Devil, but, then, “do you really think you could stand upright in the winds that would blow then?” If the constitutional principles of justice, liberty, and equality really reside in our hearts, we must use all of our legal skills to preserve it in the face of an onslaught that would render it an artifact of a world that will no longer exist.

2025 Corbin Appellate Symposium

The 2025 Corbin Appellate Symposium will be held on March 13 & 14, 2025, in Little Rock, AR. The symposium will include presentations on preparing for oral argument, preserving the record, and writing, The symposium will also include panels on state and federal appeals. The symposium features distinguished members of the bench, bar, and academy. You can find more information and register here: Corbin Appellate Symposium.

 

Guns, Young People, and Overturning Precedent

Last week, the Fifth Circuit, continuing to issue decisions likely to obtain further review in the Supreme Court, struck down a federal firearms law that prohibited selling handguns to 18-to-20 year olds. The unanimous decision in Reese v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,[1] suggests a thing or two about appellate advocacy.

In 2012, the same circuit had upheld the same law, rejecting the arguments that succeeded this time. The new decision was written by the author of a dissent from denial of rehearing en banc in the 2012 case, Judge Edith Jones. She wrote that the earlier ruling was “inconsistent” with the Supreme Court’s more recent Second Amendment decisions in New York Rifle & Pistol Ass’n, Inc. v. Bruen,[2] and United States v. Rahimi.[3]

Normally, a panel of the Fifth Circuit cannot overrule an earlier panel’s decision absent an intervening change in the law such as a statutory amendment or a ruling from the Supreme Court or the Fifth Circuit sitting en banc.[4] The Fifth Circuit refers to this well-established practice as the “rule of orderliness.”[5] In the new decision, Judge Jones clearly indicated that the intervening U.S. Supreme Court rulings effectively overruled its 2012 decision. If it were unclear and the panel did believe the 2012 decision was flawed, its authority would have been limited to inviting a petition to rehear the case en banc.[6] Last week’s panel found that unnecessary.

On this point, however, there is good reason to question that conclusion and seek rehearing en banc, although it may well result in affirming the decision due to the current make-up of that court. The earlier decision, Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,[7] had found that the restriction on people under 21 years old was “consistent with a longstanding, historical tradition, which suggests that the conduct at issue falls outside the Second Amendment's protection” and supported by considerations of public safety.[8] It surveyed “founding-era thinking” and “the views of various 19th-century legislators and courts,” as well as congressional findings that the age group selected “tend to be relatively immature and that denying them easy access to handguns would deter violent crime.”[9] The United States, defending the statute in the current case argued in its brief, that “NRA’s detailed review of the historical record shows that the commercial sale restrictions satisfy Bruen’s historical standard.” U.S. Br. 15.

The NRA decision, then, relied on precisely the type of historic evidence that Bruen required. There was no change in the analytical framework that the Fifth Circuit employed in 2012. The only difference, then, was a different set of judges who discounted the history that the first panel found decisive. Because what happened was not a change in the law as much as it was a change in the panel’s views of what counts for applying the same rule of law, the overruling would seem to violate the rule of orderliness.

Lesson one, then, is when the rule of orderliness applies and how it may be used.

The statute invalidated was the 1968 Omnibus Crime Control and Safe Streets Act. Among other things, the Act prohibited Federal Firearms Licensees from selling handguns to 18-20 year olds. In last week’s decision, the court concluded that the Second Amendment “includes 18- to 20-year-old individuals among ‘the people’ whose right to keep and bear arms is protected.”[10]

Bruen established a new framework for evaluating Second Amendment claims, employing the “history and tradition” version of originalism. It held that New York’s more than century-old law that prohibited carrying handguns in public, even if concealed, was unconstitutional. That approach places the burden on the government to justify its law implicating the Second Amendment as “consistent with the Nation’s historical tradition of firearm regulation.”[11] Although New York proffered a number of historical antecedents it claimed support the law’s validity, the Bruen Court rejected their relevance because that “handful of late-19th  century” exemplars provided “little evidence of an early American practice of regulating public carry by the general public.”[12] Instead, the Court relied on the continuous practice “stretching from medieval England to the early 20th century,”[13] where people were largely free to carry their firearms as they pleased.

Bruen was justly criticized in dissent by Justice Breyer as being selective in its choice of historical precedent, and by others for taking the position that state legislatures acting under the shadow of the Second Amendment both best understood the scope of its constitutional reach and chose to enact the maximum constitutional limits consistent with the Amendment at the time they enacted laws, fully anticipating the issues it could pose down the line. In other words, the theory appeared to defer to the judgment of 18th and 19th century legislators as constitutional gurus who had exercised their maximalist authority. Such a position is easily rejoined by the observation of Gideon J. Tucker about how legislation proceeds in 1866: “No man’s life, liberty or property are safe while the Legislature is in session.”[14] He hardly endorsed any concession of constitutional prowess.

Two years later, in a case arising from the Fifth Circuit, the Court faced an issue in how to apply Bruen. In Rahimi, a man challenged a federal statute that prohibited individuals subject to a domestic violence restraining order from possessing a firearm if he represents a credible threat to certain others. The Fifth Circuit invalidated that statute, too, as inconsistent with the Nation’s historical tradition of firearm regulation. The Supreme Court reversed, 8-1. Asserting that some courts have misunderstood Bruen’s methodology and that it was “not meant to suggest a law trapped in amber,” the Court held that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791,” for to hold otherwise would suggest the Second Amendment only protects a “right only to muskets and sabers.”[15] Even so, the Court undertook a history-and-tradition analysis, giving analogous historic gun regulations greater play in the joints than it had found acceptable in Bruen. As a consequence, the Court said that in its Rahimi ruling, that federal law could bar a domestic abuser from possessing a firearm without violating the Second Amendment consistently with Bruen. The one justice to disagree with that holding and to agree with the Fifth Circuit that the law must be invalidated: Justice Thomas, the author of Bruen.

In the new Fifth Circuit case, the government defended the statute, much as New York defended its law in Bruen, by pointing to earlier regulations it claimed were analogous. One came from colonial times; three others became law between 1829 and 1868. The Fifth Circuit found these unpersuasive: “One brief pre-ratification aberration and a handful of post-ratification examples do not outweigh the consistent approach of all states—including Virginia—where the minimum age of eighteen prevailed at or immediately after ratification of the Second Amendment,” noting that most states considered 18 year-olds eligible to serve in the militia and carry arms.

The government also contended that 19 states enacted laws between 1856 and 1897 that limited gun ownership among the relevant age group, but the court quoted Bruen to say that “courts must “guard against giving [such] postenactment history more weight than it can rightly bear,” and “that not all history is created equal.” Bruen, 597 U.S. at 34. 35. It found the availability of guns, regardless of age, widespread during the ratification period and that fact sufficed to invalidate the law so that the text of the Second Amendment, which did not limit access by age had to be vindicated. In the end, the Fifth Circuit found more fodder for its views in Bruen than in Rahimi.

Although the new administration’s views on the Second Amendment likely align with the Fifth Circuit, the invalidation of a federal law is certworthy fodder for the Supreme Court,[16] even if someone else must be appointed to defend the law. As is often the case in appellate advocacy, existing precedent is difficult to reconcile. Bruen points in one direction, and Rahimi provides grounds for a potentially opposite conclusion. Why was it that the Court (and historic precedent) allowed a prohibition on domestic abusers to survive constitutional scrutiny? It was plainly because there was a cognizable and substantially certain risk that accompanied the availability of guns for that category of individual. Can a generalized assumption that a particular age group, eligible to serve in the military, also qualify as having a heightened risk? Is it enough that 18-20 year olds commit a disproportionate number of gun homicides? Or is this an opportunity to attack the history-and-tradition approach that Bruen adopted?

Lesson number two is that, even with Supreme Court and Solicitor General sentiment likely to side with the Fifth Circuit, there are appellate strategies that could help reach a different result. I should also note that the issue decided in Reese is also under advisement in the Fourth Circuit.

 

[1] 23-30033, 2025 WL 340799 (5th Cir. Jan. 30, 2025).

[2] 597 U.S. 1 (2022).

[3] 602 U.S. 680 (2024).

[4] Jacobs v. Nat'l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[5] Id.

[6] Id.

[7] 700 F.3d 185 (5th Cir. 2012),

[8] Id. at 203.

[9] Id.

[10] Reese, 2025 WL 340799, at *13.

[11] Bruen, 597 U.S. at 38.

[12] Id.

[13] Reese, 2025 WL 340799, at *4 (characterizing Bruen).

[14] Final Accounting in the Estate of A.B., 1 Tucker 248, 249 (N.Y. Surr. Ct. 1866). 

[15] Rahimi, 602 U.S. at 692.

[16] See Iancu v. Brunetti, 588 U.S. 388, 392 (2019).

Writing an Effective Opposition Brief

In litigation, attorneys write countless briefs at the trial and appellate stages, many of which involve opposing motions filed by an adversary, such as motions to dismiss, compel discovery, or for summary judgment. Effectively responding to these motions is critical to maximizing your chances of success. Below are tips on crafting an effective opposition brief:

1.    Use the Introduction to Win the Motion

First impressions matter. Use the introduction to persuasively and concisely argue why you should win. Start with a compelling theme that encapsulates your position. Clearly state the remedy you seek and apply the Rule of Three to outline three key reasons supporting your argument. Highlight your strongest facts and case law while exposing weaknesses in the adversary’s argument, such as omitted facts or precedent. Conclude the introduction by reiterating your theme and requesting a ruling in your favor.

2.    Reframe the Narrative

The adversary’s Statement of Facts will present a narrative that favors their position. In your opposition, take control by reframing the narrative. Highlight the most favorable facts, add vivid details where appropriate, and show—not just tell—why your version is superior. Avoid argumentative or hyperbolic language in this section but respond where necessary, such as by pointing out omitted or mischaracterized facts. Ultimately, aim to establish a narrative that supports your position while undermining the adversary’s credibility.

3.    Leverage Case Law

Judges heavily rely on case law to decide motions. Present binding precedent that closely aligns with your case and supports your desired outcome. Avoid over-explaining or overstating the precedent, and refrain from unnecessary string citations. Maintain credibility by accurately representing the facts and holdings of your cited cases. When necessary, distinguish unfavorable precedent or explain why it does not apply. Review the adversary’s cited cases and identify misstatements or omissions that weaken their argument.

4.    Problematize the Issues

The adversary’s motion will frame the legal issues in their favor. Your job is to add complexity and nuance to those issues. Present facts and legal authority demonstrating reasonable disagreement, showing that the adversary has failed to meet their burden of proof. For example, when opposing a motion for summary judgment, emphasize disputed material facts that preclude judgment. Use the burden of proof to your advantage, focusing on undermining the adversary’s position without overcommitting to proving your case outright.

5.    Highlight What the Adversary Omitted

Undermine the adversary’s credibility by pointing out what they failed to include. This could be relevant facts or precedents that, if considered, would favor your position. Emphasizing these omissions strengthens your argument and casts doubt on the reliability of the adversary’s brief.

6.    Anticipate and Address the Reply Brief

Anticipate the arguments the adversary will likely raise in their reply brief and address them proactively in your opposition. Excellent attorneys often save some of their strongest arguments for the reply brief. By preemptively countering these points, you strengthen your position and reduce the impact of their final arguments.

7.    Focus on Key Arguments

Avoid responding to every argument the adversary raises. Some attorneys will present numerous weak arguments, hoping something will stick. Do not fall into the trap of addressing every point. Instead, focus on credible arguments and devote the most attention to the strongest issues. If you must respond to weaker points, do so briefly. Remember, giving undue attention to a weak argument can inadvertently lend credibility to that argument.

8.    Maintain Professionalism

Avoid combative or hyperbolic rhetoric. Personal attacks on the adversary, prior court decisions, or excessive legalese detract from your credibility and weaken your position. Instead, rely on a clear, factual narrative and solid legal reasoning to persuade the court. Let your arguments speak for themselves, and avoid artificial devices that add no persuasive value.

By following these strategies, you can craft an opposition brief that not only counters the adversary’s arguments but also positions your case for success. The key is to stay focused, professional, and persuasive, leveraging the facts and law to your advantage.

New Year, and Some New Courts

The start of a new calendar year often presents fresh opportunities. For appellate advocates, cases continue, and new ones develop. That would seem to make January uneventful – just a new month like any other month. Still, in at least some states, courts operate on a calendar-year basis. The end of December may be the end of a state supreme court term and often marks the issuance of the remaining cases of the term. January, then, brings a fresh set of cases and, possibly, new justices and chief justices. The impact of these changes is unpredictable. In some instances, things will continue as they have in the past; in others, significant change may occur.

Past experience with the U.S. Supreme Court and with attempts to avoid it offer some perspective. For example, the change represented by the Warren Court was revolutionary. It had become so trailblazing that state courts had difficulty keeping up and adopted what one scholar called “the drowsy habit of looking no further than federal constitutional law.”[1] In the late 70s and early 80s, the change in direction in the U.S. Supreme Court from the Warren Court’s heyday brought talk of a “New Judicial Federalism,” in which advocates were urged to refocus on state constitutional issues and state supreme courts to achieve their appellate goals. Prominent law review articles to that effect were written by Justice William J. Brennan, Jr.[2] and then-Oregon Justice Hans Linde.[3] A New Jersey supreme court justice even suggested that failing to brief the state constitutional issues fully and separately might be considered malpractice.

As I’ve written before, “[s]tate constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[4] Notably, the New Judicial Federalism also received heavy criticism, with one professor labeling the courts’ emphasis on different state constitutional takes “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”[5]

The New Judicial Federalism was not something new, though. Instead, it constituted a rediscovery of what state courts had previously undertaken. Many now-familiar federal constitutional holdings and doctrines were first developed in state supreme courts under state constitutions. Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminded us of the critical role of state courts and constitutional principles in a 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” What advocates discovered in turning to state constitutions was a whole set of independent state law grounds to achieve victories not available under the U.S. Constitution and immune from U.S. Supreme Court review. The popular view was that the U.S. Constitution provided a floor of minimum rights, while state constitutions could provide a higher ceiling.

With a solid more conservative majority on the U.S. Supreme Court, and the aftermath of decisions on reproductive rights, guns, and even presidential immunity, some advocates have once again redirected their gaze at state supreme courts. The Brennan Center for Justice at NYU Law School has taken up its namesake’s reminder about considering state constitutions and now publishes the State Court Report, which follows state courts and state constitutional law. It is a valuable legal resource for appellate advocates.

Today, after appointments and elections this past November have placed new members onto chief justice seats and on various courts, new opportunities arise to test ideas and doctrines in the state courts. Justice Byron White once said that with each new member who joined the U.S. Supreme Court, a new Court was constituted. The same is likely true for our highest state courts.

 

[1]  A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[3] Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

[4] Robert S. Peck, For Trailblazers, When the U.S. Constitution Is Not Enough, 45 New Eng. L. Rev. 855 (2011).

[5] James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992).

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

 

[1] U.S. v. Skrmetti, Transcript of Oral Argument,  (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

[6] 543 U.S. 551 (2005).

[7] 381 U.S. 479 (1965).

[8]  410 U.S. 113 (1973).

[9] 521 U.S. 702 (1997).

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

The “Boneless” Chicken Case

Borrowing a line from Oliver Twist, Justice Brennan once wrote that “[t]o say that ‘the law is an ass, a idiot’ is not to impugn the character of those who must administer it.”[1] Imperfections in the law, he wrote, do not reflect on the judges, but on a system judges are powerless to change when they adhere faithfully to what is required of them. Still, there are times when a fair reading of the law and a judicial decision seem so at odds with each other that one must wonder whether the judges in such a case occupy a universe of their own making. An opinion issued in July by the Ohio Supreme Court seems likely to evoke that type of response. The case has come to be known as the “‘boneless’ chicken” case.

The dispute originally arose when the plaintiff ate his usual order of “boneless” wings at a restaurant he frequented. He suffered serious medical problems when a chicken bone lodged in his throat while eating that meal. Doctors at the emergency room found 5-cm long chicken bone had torn his esophagus and created a bacterial infection along with other medical issues.

A deposition of the restaurant’s cook explained that the wings were made from pre-butterflied, boneless and skinless chicken breasts, which were cut into one-inch chunks before being served to customers. In suing, the plaintiff claimed that the restaurant and its supplier were negligent by serving a boneless wing with a hidden bone in it and no warning of any kind that it may contain a bone.

The trial court initially granted judgment on the pleadings to the defendants, but an intermediate appellate court reversed and remanded the case as plausibly stating a cause of action for negligence. The defendants moved for summary judgment, which the court granted because “common sense dictated that the presence of bone fragments in meat dishes—even dishes advertised as “boneless”—is a natural enough occurrence that a consumer should reasonably expect it and guard against it.”[2] The intermediate appellate court affirmed, holding that “the bone was natural to the boneless wing.”[3]

The Ohio Supreme Court considered the case in light of another it had decided in 1960, where it had applied a reasonable-expectation test to ingesting a foreign substance. Under that test, a court considers what a reasonable consumer would expect to encounter in the food and thus guard against, so that its presence does not impose a duty of care on the supplier when the substance should not be a surprise. That determination, the Court held, is reflected in a companion “foreign-natural” test, which assesses whether the substance in the food was natural to it and thus not a foreign substance. In the 1960 decision, the Court ruled that a piece of oyster shell in or attached to any oyster should be anticipated and not impose a duty on the restaurant.[4]

The Court then found no error in the appellate court’s determination that a chicken bone was natural to chicken meat and thus not an “unnatural or ‘foreign substance.’”[5] That the meal was sold as “boneless” did not change the Court’s conclusion, given that “’everyone … knows that tiny bones may remain in even the best fillets of fish.’”[6] The Court also held that the bone was large enough that, “as a matter of law, he reasonably could have guarded against it.”[7]

Further dismissing the argument that the food was advertised as a “boneless wing,” the Court characterized that representation as “merely a description of  the cooking style.”[8] The Court then adopted a strange analogy, saying that a:

    diner reading “boneless wings” on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from     chicken wings, just as a person eating “chicken fingers” would know that he had not been served fingers. The food item’s label on the menu described a cooking style; it was not a     guarantee.[9]

The majority also defended against a criticism in the dissent about food advertised as lactose- or gluten-free: the  presence of lactose or gluten in a food that was advertised as lactose-free or gluten-free is not something a consumer would customarily expect and be able to guard against.[10]

As the dissent pointed out, the decision allowing a court to determine as a matter of law what the reasonable diner might expect appears to put “another nail in the coffin of the American jury system.”[11] It further argues that the existence of three dissenting justices demonstrates that a reasonable person could reach a conclusion contrary to the majority’s.[12]

The dissent’s points about the determination falling within the jury’s constitutionally guaranteed prerogative are well taken. The Ohio Constitution guarantees the right to a jury trial as “inviolate.”[13] Even so, one finds it difficult to understand how the sale of  “boneless chicken” does not create an expectation that it is bone-free because it is being sold as devoid of bones. Nor can it be justified as a mere “cooking style,” a terminology that I would associate with Southern, French, Basque, or Chinese cooking as examples. Boneless is not a cooking style. In an era in which public respect for the courts is perilously low, the decision will confound the public and suggest that words do not mean what they say – at least as a matter of law, which is why most commentators have had a bone to pick with the Ohio Supreme Court.

 

[1] In re Sawyer, 360 U.S. 622, 634 (1959).

[2] Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 9 (characterizing ruling).

[3] Id. at ¶ 10.

[4] Id. at ¶ 17 (characterizing Allen v. Grafton, 170 Ohio St. 249, 251, 164 N.E.2d 167 (1960)).

[5] Id. at 20 (quoting 2023-Ohio-116, 206 N.E.3d 90, at ¶ 26 (12th Dist.)).

[6] Id. at ¶ 21 (quoting Mathews v. Maysville Seafoods, Inc., 602 N.E.2d 764 (12t Dist. 1991)).

[7] Id. at ¶ 22.

[8] Id. at ¶ 23.

[9] Id.

[10] Id. at ¶ 24.

e[11] Id. at ¶ 27 (Donnelly, J., dissenting).

[12] Id.

[13] Ohio Const. art. I, § 5.

A View of the Supreme Court

In this post, I’m going to be a little self-indulgent. This past week saw the publication of a new book that I wrote with my friend, Anthony Champagne, a professor emeritus of political science at the University of Texas at Dallas. Tony and I served together as Supreme Court Fellows in 1990-91 and became lifelong friends. We discovered early on that we each had collected scores of anecdotes about the Supreme Court and its justices. We each deployed these stories in speeches and lectures, finding that audiences loved the tales. Eventually, we resolved to compile the stories in a book.

Last Monday, the book was published. It is called “Supreme Anecdotes: Tales from the Supreme Court.” Part of the reason for its lengthy gestation period is that we resolved to cover every justice to ever have served on the Court. That meant rifling through judicial biographies, law review articles, tributes, and a variety of other sources to cover even justice. Our original publisher became a victim of business failure during the pandemic. Once we found a new publisher, we needed to update our manuscript to cover some new appointees.

We are heartened by the reception the book has had. Dean Erwin Chemerinsky of the Berkeley School of Law said he could not “think of another book on the Supreme Court that I enjoyed reading more or learned more from.” Former Texas chief justice Wallace Jefferson called it a “must read for all who care about the majesty and frailty of the rule of law.”

Political science professor James Riddlesperger, Jr. of Texas Christian University lauded its appreciation of the Court’s history, as well as “a chuckle a page.” Research professor Royce Hanson of the George Washington University Institute of Public Policy enjoyed the peek it gave at the “foibles, follies, and occasional withering wit of the Supremes.” And Alan Morrison, associate dean at George Washington University, wrote that it “gives the reader a very different side of the Justices, including the fact that many of them did not come close to fitting our ideal of members of the Highest Court.

Certainly, the book tells many funny stories about the Court over the years and that is enjoyable in its own right. Still, it also highlights the ways the Court has changed since its early days – and the ways in which it remains very much the same. I hope that readers of this blog find it useful, as well as an enjoyable romp through Supreme Court history.

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

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

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

A Primer on Ninth Circuit Binding Dicta: Judge Forrest’s Stein v. Kaiser Concurrence

Early in law school, you probably learned that dicta is non-binding.  Later, you also probably realized that application of this dicta rule, like so many other rules, depends.  For example, our 1L persuasive writing assignment last semester included a case discussing when Supreme Court dicta can be controlling.  Moreover, the Ninth Circuit has sometimes employed a “binding dicta” rule.

This week, Ninth Circuit Judge Danielle Jo Forrest detailed the history of the Ninth Circuit’s “dicta-is-binding rule,” which she called “burdensome and misguided.”  Stein v. Kaiser Fdn. Health Plan, Inc., __ F.4th __, 2024 WL 4271950, slip op. at 9 (9th Cir. 2024)(en banc)(Forrest, J., concurring).  In an opinion tracing the use of dicta from Sir Frances Bacon to today, Judge Forrest, joined by Judge Bumatay, asked the Ninth Circuit to join every other circuit in not using dicta as binding precedent. 

Judge Forrest explained a rule demanding courts follow some dicta “lacks legal foundation,” “causes unnecessary inefficiency,” “wastes resources,” and “is contrary to the common-law tradition of judging, the jurisprudence of the Supreme Court and every other circuit court in the nation, and the Constitution.”  Stein, Slip op. at 9.  According to the concurrence, the Ninth Circuit “stand[s] out like a flamingo in a flock of finches in treating dicta as binding.”  Id. at 16. 

Judge Forrest noted the Ninth Circuit initially took this “flamingo” approach to dicta without briefing or full discussion, stating:  “Irony upon irony, th[e] pronouncement about dicta was, itself, dictum,” as it came in an en banc case concurrence joined by only four total judges.  Id. at 16-17.  Moreover, she explained the authority “cited [in the dicta-rule-creating concurrence] do not support the dicta-is-binding rule.”  Id. at 17-18.  Thus, “the dicta-is-binding rule did not have the numbers to be real law,” yet “it quickly begat progeny.”  Id. at 18. 

Moreover, even if there had been a justification for a binding dicta rule, perhaps “because [the Ninth Circuit] thought the expansion of judicial decision-making authority would be limited” by the rule, in practice “it has not turned out that way.”  Id. at 18-19.  The history and application of the Ninth Circuit’s rule left Judge Forrest to “wonder:  if all the other federal appellate courts can figure out what is and isn’t dicta without destabilizing their law, why can’t we?”  Id. at 19.

As appellate lawyer Cory Webster wisely notes, Judge Forrest’s Stein concurrence could be required reading in a course on the law of judicial precedent.  Cory Webster, LinkedIn, https://www.linkedin.com/feed/update/urn:li:activity:7245432020770693122/.  The opinion is also a very interesting read on dicta, and on persuasive opinion writing.  I will definitely be making the opinion required reading for my class, and I hope you enjoy reading it too.

Recognition is Nice, But Results and a Compelling Story is What Counts

Advocates enjoy receiving recognition. We like to think that a job well done is a reward in itself. When the effort establishes an important new precedent, the satisfaction ought to be even better. A week ago today, I was privileged to receive the 2024 Appellate Advocacy Award from the National Civil Justice Institute for a 2022 victory in the Ohio Supreme Court. When the award was announced, I received a nice email of congratulations from a justice on another state’s supreme court, indicating that the award was well deserved based on my win. I appreciated the congratulations that the award and the many emails I received represented, but it also had me pondering what makes a judicial victory sufficiently different that it merits this type of recognition.

Certainly, there are many run-of-the-mill appeals that are taken as of right but do not move the needle on the case or on the law. These appeals are important to the clients, but perhaps to few others. Still, others have great potential to answer issues not yet addressed by the courts or to change the law. My recognition came in a case that successfully challenged the constitutionality of a state law as it applied to our case. It overcame considerable odds to reach that conclusion. The skill and effort I employed, and even the inventiveness of the arguments and strategy I utilized, would have been no different had the sharply divided court come out the other way. So, plainly, one element that counts, disproportionately, is victory. We celebrate winners and not equally important losing efforts that may pay off later.

Another element necessary for recognition is a compelling story. Without one even the most surprising win, the creation of a leading precedent in an area of law, and an innovative approach to the argument may not inspire the recognition that carries with it even broader impact. I was lucky enough to have a case come to me with compelling underlying facts and a cry for justice that melted even the most hardened hearts. It was the story of a young girl, lured to sleepovers at a friend’s home, only to have a nighttime drink spiked to put her in a deep sleep and sexually assaulted by friend’s father – 34 times. He also videotaped the assaults of both this plaintiff and others. He went to prison, but the psychological injury to the plaintiff led to homelessness, drug addiction, and a long road to finding a more normal life.

Despite a substantial jury verdict, consisting entirely of noneconomic damages, state law required that the court reduce it to $250,000, which the trial court did. The reduction sent a message that the value of the plaintiff’s life was a small fraction of what the jury determined. An intermediate appellate court also rejected the constitutional challenge. At the state supreme court, a bare majority agreed that the state damage cap law’s exemption for permanent physical injuries of a catastrophic nature, irrationally excluded permanent, catastrophic psychological injuries, in violation of due process. Dissenters sought to avoid the question by latching onto the idea that the issue was moot because the defendant was judgment-proof. Another dissenter complained that the nine months from oral argument to decision was insufficient time for him to research and write a proper dissent by a majority determined to issue the decision before the end of the year. To me, that seemed an odd complaint, given that appellate advocates normally have but 30 days to brief the issue (especially as I had been brought into the case at the reply-brief stage).

But the dissent was a bid to encourage a motion for reconsideration. The chief justice, who had written the majority opinion, was stepping down at the end of the year due to hitting the mandatory retirement age. If reconsideration spilled over to the new year, a new and very different majority would decide the motion.

Reconsideration was filed late at night on December 26. Anticipating that motion, my response was largely written. I tweaked it to address some unexpected citations and filed the next morning. Reconsideration was denied December 29. The case is Brandt v. Pompa, 171 Ohio St. 3d 693, 220 N.E.3d 703 (2022). And the now-adult plaintiff knows the value of her life was vindicated even if she never sees any of that money – and others in similar circumstances know that their claims will not be artificially degraded.

Neurodiversity and Legal Advocacy: ADD

I.     Introduction

Attention Deficit Disorder is another type of neurodivergence, or different way of thinking and processing, that impacts a large segment of the population. About 8% of the population has ADD. But according to one study, over 12% of attorneys have ADD.

For years, ADD was primarily referred to as hyperactivity. It was seen as a moral problem - a failure to focus - until recent advancement have shown that it is another heritable series of traits that leads to a different way of thinking, with manageable deficiencies and valuable strengths.

II.     Strengths

Bob Lobel is a legendary sports personality in Boston. He is known for his integrity, his ability to ad-lib, and his creativity. He attributes these strengths to his ADD.

“What makes me unique come straight from my ADD. I’m like the cut up in sixth grade. I thrive on chaos. I love to ad-lib. I think outside the box. Geez, I can’t think inside the box. I can change leads three seconds before airtime and make up the copy as we go on the air. This is just who I am. It comes naturally to me. That’s why I think of ADD as a gift, not as a liability.”

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder 30 (2005).

Many attributes of people with ADD are gifts. Helping them see and nurture those gifts is key to helping them thrive in their practice.

    A.    Creativity
Whether because of their divergent interests, or simply because they see things differently, people with ADD are often creative in their approaches to life. As problem solvers, they tend to be holistic, and often think outside of the box. They also tend to think quickly.

    B.    Charisma
People with ADD are often described as being charismatic. They are empathetic, because they have had to deal with their own struggles, and tend to approach life with a sense of humor. When they focus on a person, that person knows they are being seen. And their energy and creative approach to life can be contagious.

    C.    Energy
Many, but not all, of those with ADD have a strong sense of energy that they have learned to harness over the years. This energy can be motivation and inspirational in a team setting, and certainly valuable in long trials and other legal efforts. In fact, many people with ADD consider themselves to do better when under pressure. They thrive on the chaos that so often arises in our legal practices.

    D.    Focus
When a person with ADD gets into a focused “flow” state, it is hard to shake it. Many successful scientists, writers, artists, and attorneys with ADD attribute their success to their ability to enter into a state of flow for hours on end. In fact, lawyers with ADD often say one of their strengths is the ability to focus on their work under extreme pressure.

    E.    Tenacity
By the time a person with ADD has their law degree, they have overcome a great deal of adversity. They have developed grit. And they are unlikely to experience serious setbacks the next time they encounter difficulty.

III.    Weaknesses

For most of history, the primary effects of ADD - distractability, impulsivity, and restlessness - were seen as moral failings. As science progressed, it was discovered that ADD was a heritable trait, with physiological differences in certain regions of the brain that caused these issues. If you have a student or coworker with ADD, just telling them to “buckle down and pay attention” probably won’t work. They physically may not be able to do so. But they can learn coping mechanisms and structure.

By the time someone with ADD reaches law school, they likely have a successful suite of coping skills. But law school poses a unique challenge. There are few places where focus and discipline are more valued, and certain addictions more fostered, than in law school and the legal academy in general. And often, students and new lawyers have been plucked from their social safety nets to be placed into that environment.

One of the primary things those students need is the structure that a mentor, or group of similarly neurodivergent peers, can bring. Structure, accountability, and encouragement are important for everyone, but particularly those with ADD. Providing that in some way is vital.

In addition to providing that social support, the following are some areas of difficulty that those with ADD have found successful ways to manage.

    A.     Distractability
“Attention Deficit Disorder” is something of a misnomer. There isn’t so much a “deficit” of attention as a surplus that is spread a bit too thin. Coping with that surplus can take many forms.

First, good health can reduce distractability. Adequate sleep, daily exercise, and a good diet have all been shown to improve focus for those with ADD. Some supplements (like Omega 3 fatty acids) have been suggested to help as well. These all require structure, planning, and likely some encouragement. But it is worth the effort.

Many people with ADD benefit from medication. However, 20-30% of those with ADD say medication does not help. And there have been recent shortages in some medications, like Adderall. As a result, when, what, and how to take medication is a highly personal choice for those with ADD.

There are practical structural steps to take as well. ADD law students on Reddit recommend maximizing your word-processing screen so you won’t be tempted by other apps, or even just taking handwritten notes to escape electronics entirely. Some even try to turn each case into a full narrative, or illustrate the margins, just to keep themselves engaged.

    B.    Impulsivity
It can be difficult for a person with ADD to resist certain impulses. This includes addictions already dangerous to our profession, like drugs and alcohol. But it can also result in risk-taking and other damaging activities as they seek to scratch an itch they can't seem to identify.

Some people with ADD may also have a condition known as Reward Deficiency Syndrome. Regular dopamine release just doesn’t quite produce the same feeling of satisfaction or pleasure for people with RDS. As a result, they are more prone to addiction and risk-taking. Diagnosis of that condition can lead to important coping skills and training, and awareness of that potential susceptibility can make it easier to confront.

    C.    Restlessness
When your mind wants to focus on everything, it can be hard to maintain focus on one thing at a time. In men more than women, this can manifest in hyperactivity. In women it can instead appear as “zoning out.”

The opposite side of this coin is hyper focus, or “flow.” There are time when a person with ADD is so engaged that everything else disappears and time seems to stand still. But of course, it doesn’t. And so the flow state can be equally problematic if not managed, leading to the neglect of other important things.

    D.     Time management
ADD makes time management difficult. This is particularly true in the law, where you need to be sure you have read through and analyzed every detail in a given case or exam question. Law students with ADD recommend seeking accommodations for extra time on exams for this reason. They must read the questions several times to catch all the details, then outline and structure the answers carefully to address them all. Then, at the end, they need time to edit out the rabbit trails.

Similarly, law students with ADD stress the need to set early deadlines. In other words, if a paper is due December 1, and that is the only deadline, there is a strong temptation to wait until November 30th to start. So setting earlier deadlines for research completion, first draft, and final edits, for instance, is key.

The same holds true in practice. Deadlines are best broken down and set at earlier increments than what is imposed by the court. And extra time and attention to reading, organizing, and editing is essential.

To help, many students and attorneys with ADD recommend apps. There are free and paid apps that help with scheduling and reminders. The “pomodoro” technique of setting timers for tasks, followed by set breaks, is often helpful, and can be managed with apps.

    E.    Organization
ADD and organization are not friends. Messy desks, disjointed writing, and scattered schedules are fairly common. So purposeful organization is important.

Many lawyers with ADD recommend apps for assistance with organization. As with time management, there are free and paid apps to assist with organization and to keep you on target.

    F.   Emotional Tolls
Being labeled an underachiever with moral failings rather than a different way of thinking takes a toll on many people with ADHD. While they have accomplished much by the time they reach law school, or get their law license, they may be saddled with a great deal of insecurity or fear of criticism.

Perhaps one of the most important things a professor, mentor, or law partner can do is encourage their student or employee with ADD. Acknowledge and see their strengths and weaknesses, help them with time management and organization and focus, and see them thrive.

Additional Reading:

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder (2005).

AdditudeMag.com

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

Will Former President Donald Trump’s Conviction Be Overturned?

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)