Appellate Advocacy Blog

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

Tuesday, February 18, 2020

Reasonable Sources on Appeal

Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.

One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes,  and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?

The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive.[1] The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups.[2] The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.[3]

This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?

Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry.  Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.

 

[1] United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).

[2] United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

[3] See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).

February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, February 16, 2020

Resolving the Tension Between Religious Liberty and Equality

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs.[1] By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs.[2] The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.

Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?

In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing.[3] Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.

The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases.[4] To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”[5]

Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests.[6] The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.

First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[7]

Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”[8]

Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion.[9] As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[10]

Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices.[11] Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”[12] The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.[13]

In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest.[14] However, in City of Boerne, the Court held that the Act does not apply to the states.[15] Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.

Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”[16] However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.

If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.

As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.

[1] 138 S. Ct. 1719 (2017).

[2] See id.

[3] See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”). 

[4] U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).

[5] 521 U.S. 507, 564-65 (1997).

[6] See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).

[7] 98 U.S. 145, 166 (1878).

[8] 485 U.S. 439 (1988).

[9] 508 U.S. 520 (1993).

[10] Id. at 547.

[11] 494 U.S. 872 (1990).

[12] Id. at 878.

[13] 374 U.S. 398 (1963).

[14] 42 U.S.C. § 2000bb-1(a)(2012).

[15] 521 U.S. 507.

[16] 138 S. Ct. 1719 (2017).

February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, February 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, February 14, 2020

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

US Supreme Court Opinions and News:

  • Texas has petitioned the Supreme Court to declare a California interstate travel-ban unconstitutional. The travel ban prohibits state-funded travel to states that fail to provide sufficient protections for LGBTQ people. Texas was added to the list of banned states in 2017 because of a Texas law allowing foster care agencies to use sincerely held religious beliefs as a basis to deny placements to gay couples. Texas argues that the ban violates the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. See the State of Texas filing. Reports are available from The Texas Tribune and Fox News and by Josh Blackman at The Volokh Conspiracy.

  • The Supreme Court issued a memorandum formalizing some previously unwritten procedural  rules.  This memorandum discusses rules on scheduling private conferences and deadlines for petitions for certiorari.  Bloomberg Law has this report on the memorandum.  

  • Adam Feldman has posted “About this Term: OT 2019” at his Empirical SCOTUS blog.

  • In Supreme Court historical news, Christopher Brooks wrote an online essay about the first black man allowed to argue before the Supreme Court. And the Harvard Law School Library has released some of the papers of Justice Antonin Scalia. Harvard Law Today reported here.

Federal Appellate Court Opinions and News:

  • The Court of Appeals for the DC Circuit threw out the emoluments claim against the president brought by 215 members of Congress. The DC Circuit applied Supreme Court precedent from House of Delegates v. Bethune-Hill (2019) and Raines v. Byrd (1997), holding that “’individual members’ of the Congress ‘lack standing to assert the institutional interests of a legislature.’” The order reversed a lower court holding that the members had standing. The order is here. The many reports on this ruling include those from The New York Times , The Washington Post, The Wall Street Journal, The Hill, and Politico.  

  • The Third Circuit ruled in favor of Philadelphia, finding that the city can prohibit an employer's asking an applicant about salary history. The ruling was welcomed by wage-equity proponents, who claim the law could reduce gender- and race-based wage discrimination.  See reports from the National Law Review and the Philadelphia Inquirer and an essay about the equal pay implications by Professor Joanna L. Grossman. The ruling is here.

  • After ruling that Arizona’s “ballot harvesting” law discriminates against minority voters (see The Weekly Round Up, January 31), the Ninth Circuit granted Arizona’s request to stay the ruling so that Arizona may seek Supreme Court review. The stay means that the law will remain in effect at least through the presidential primary in March. See report in the Arizona Daily Star and AP News.  

  • The Ninth Circuit upheld the dismissal of a lawsuit that argued that an Oregon school district policy violated the Constitution and civil rights law by allowing a transgender student to use bathrooms and locker rooms that match their gender identity. The court found that the policy did not violate the rights to cisgender students or their parents and dismissed the case. See reports from KATU News, Bloomberg (subscription required), and the ACLU.  The ruling is here.

  • Brooklyn Federal Judge Jack Weinstein, the longest-serving federal judge in the country, has retired after a 53-year career.  See The New York Daily News report.

 

February 14, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 11, 2020

SCOTUS Clarifies Cert-Stage Procedures

The Supreme Court of the United States recently issued new guidelines to help practitioners understand its procedures (internal and otherwise) during the certiorari stage. While the guidelines do not appear to change established practice, they do help practitioners understand how the Court operates during this stage.

The guidelines clarify when a response is required and when it should be filed, along with how and when a motion to extend time to file a response may be filed. They also address how a waiver of the right to respond may be filed, and when a reply should be filed.

The last point has confused some practitioners. There is no deadline to file a reply on petition for certiorari. However, if the reply is filed before distribution to chambers, then it is included in the preliminary packet. There is an advantage to getting that "last word" in front of the Court from the beginning of their review.

To help understand the timing, the guidelines go on to describe when petitions are scheduled for conference. This timing depends on both certain case events and the type of case ("paid" versus in forma pauperis), so if you do have a case on petition, take the time to read the guideline so you can understand exactly when it will be set for conference, and then key your deadlines off that analysis.

These guidelines appear to be part of an ongoing process by the Supreme Court to help new or infrequent practitioners understand a system that can be a bit of black box, starting with guidelines on amicus briefing issued last October. Hopefully that process will continue.

 

February 11, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Sunday, February 2, 2020

Don’t Make These Mistakes When Writing An Appellate Brief

When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.

1.    You fail to follow the local court rules

The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.

2.    You seek a remedy that is outside of the court’s authority

When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).

Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.

You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.

Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.

3.    You overstate the relevance of precedent

Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.

Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.

4.    You are not direct with the court

Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:

  • Identify the errors in the lower court’s decision
  • State the remedy that you would like the court to provide
  • Explain why you are entitled to this remedy
  • Briefly provide the facts and relevant law that support your position

If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.

5.    You do not consider the relevant standard of review

Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.

Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.

6.    You do not organize your brief effectively

Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:

  • Headings and subheadings that are rarely, if ever, longer than one sentence
  • A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
  • Paragraphs that only discuss a single point or issue and that always begin with a topic sentence

If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).

7.    You file an unnecessarily lengthy brief

Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.

Simply put, less is often more.

8.    You make basic writing or stylistic errors

Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:

  • Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
  • Use block quotes unless absolutely necessary
  • Include overly long paragraphs
  • Repeat arguments
  • Use complex or esoteric words

Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.

February 2, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, February 1, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 31, 2020

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

US Supreme Court Opinions and News:

  • This week, the Supreme Court granted, without much explanation, the petition to stay an injunction that had prevented the implementation of the Justice Department’s income-based restrictions on immigration. The ruling allows the administration, in the consideration of green card applications, to base decisions on whether the applicant is likely to need public assistance, including public benefits like Medicaid, food stamps, and housing vouchers. The bulk of the opinion is Justice Gorsuch’s concurrence, which focuses on “[t]he real problem here” described as “the increasingly common practice of trial courts ordering relief that transcends the cases before them.” See reports in New York Times, Washington Post, and Associated Press.

  • A documentary on Clarence Thomas is being screened across the country this month. “Created Equal: Clarence Thomas in His Own Words” is reviewed and discussed in The Washington Post and The National Review. A trailer is available on YouTube.

Federal Appellate Court Opinions and News:

  • The Ninth Circuit ruled this week that Arizona’s “ballet harvesting” law discriminates against minority voters. The court reversed a lower court’s findings in favor of Arizona on all counts and stated that Arizona’s laws “have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona” and that the laws were “enacted with discriminatory intent.” See decision here. See reports by The Arizona Republic, The Associate Press, The Hill, and Bloomberg Law

  • Also from the Ninth Circuit, the court will permit the malicious prosecution suit against Fairbanks, Alaska, by the four men who spent eighteen years in prison for a murder they didn’t commit. The convictions of the “Fairbanks 4” were thrown out when another man confessed to the murder.  See the Courthouse News Service report and the opinion

  • The Eighth Circuit upheld an injunction blocking an Arkansas campaign contribution law. The court ruled that the law, which prohibits contributions to a campaign until two years before election day, is likely unconstitutional.  The decision is here. See reports from Bloomberg Law (requires subscription) and the Arkansas Democrat-Gazette.

  • The DC Circuit reversed the dismissal of a First Amendment challenge to “FOSTA,” an anti-sex trafficking bill. The dismissal was based on subject-matter jurisdiction, finding that the petitioners lacked standing.  The DC Circuit decision reversed and remanded, finding that at least two petitioners had established standing. See article here.  

  • A Sixth Circuit ruling will permit an expelled med-school student to sue for defamation. The student alleges that her professor fabricated a test-cheating story after she rebuffed his advances. See decision and report from Bloomberg Law.

Appellate Practice Advice

A recent Twitter question prompted a thread providing advice for appellate advocacy “newbies.” The thread included a link to a useful 2016 post by Steven Klepper on building an appellate practice.

February 1, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, January 29, 2020

Preserving Evidence for the Record on Appeal

    The record on appeal includes “original papers and exhibits filed in the district court,” a “transcript of the proceedings” from the district court, and a “certified copy of the docket entries.”1 Appellate courts across the country have similar rules. The trial lawyer works hard to present evidence to support the client’s case. The lawyer also works hard to create and present effective demonstrative evidence. Charts printed on large boards may be used to display data and other information supporting witness testimony. Physical models may represent a forest or the seabed and be used by an expert to explain testimony about run off or contamination. And more and more often, in place of these physical charts and models, electronic presentations may be used to demonstrate this information. A witness may testify while reviewing a video of a surgery or other procedure. Models may be shown electronically, the advantage being that the models can be quickly modified or added to as a person is testifying to demonstrate the testimony. These are all effective ways of delivering information to the jury and the court.
    One of the challenges for the lawyer after trying a case with demonstrative evidence includes ensuring that these exhibits, essential to the case at trial, are accessible in forms such that they can be easily transferred to and reviewed by an appellate court, should there be an appeal. Appellate courts prefer to review information in electronic form or paper form; bulky exhibits will not ordinarily be part of the appellate court’s review.2 Thus, the trial lawyer should consider photographing bulky exhibits and entering such photographs into the record so that they can be considered by the appellate court. Information presented electronically should also be included in the record, either by printing and introducing the information in its paper form or by ensuring that the electronic version is preserved either on a flash drive or in an electronic record or transcript created by the court reporter. If the electronic exhibits are manipulated or otherwise changed as part of the testimony, the lawyer must be sure that all versions of what is presented are captured for the record.
    As technology evolves, lawyers need to adapt to ensure that their exhibits are in forms and on media that will be accessible to the appellate courts. Lawyers must also ensure that all exhibits are properly identified in the record and that the record is clear about which exhibits were entered and not entered into evidence. Lawyers must abide by procedural rules and local court rules regarding these issues, of course. Moreover, they must think and act strategically to guarantee that their exhibits will be considered by the trial and the appellate courts. Lawyers should not rely on court staff to manage this information.

1 Fed. R. App. P. 10(a).

2Id. 11(b)(2).

January 29, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Monday, January 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 17, 2020

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

Apologies for the late MLK day weekend post! 

US Supreme Court Opinions and News:

  • The Supreme Court has ordered quick briefing on the Obamacare challenge after nineteen states asked for a quick decision. Recently, the Fifth Circuit held that the individual mandate is unconstitutional but remanded the issue of severability, thus leaving the law in place for now. See report from The Hill and NBC.

  • The court has also agreed to hear (1) an administration appeal seeking to enforce federal law that would allow employers to get a religious exemption from the Obamacare requirement that health insurance cover a woman’s birth control (see report) and (2) a dispute involving whether Electoral College electors can break their pledges and support the popular vote winner (see report).

  • The Court refused to hear an appeal from three “Free the Nipple” activists after a New Hampshire city fined them for exposing their breasts in public. The appeal argued that banning female but not male toplessness is unconstitutional discrimination based on gender; the Supreme Court’s refusal to hear the case leaves the ban in place. See reports in NYPost, The Hill, and NYTimes

Federal Appellate Court Opinions and News:

  • The Seventh Circuit affirmed (after nearly 3 years) the lower court decision that required Indiana to list on birth certificates both mothers in same-sex marriages. The court held that after Supreme Court cases Obergefell v. Hodges and Pavan v. Smith, “a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” See decision at 7-8. The court ruled that the Indiana Code did just that and ruled that its operation was properly enjoined.  See reports from the Indiana Lawyer, BloombergLaw, and Slate.

  • The Eleventh Circuit upheld ex-US Representative Corrine Brown’s fraud conviction. The court rejected the argument that the trial court wrongfully removed a juror who claimed guidance from the “holy spirit” as to Brown’s innocence.  See the opinion and Florida Times-Union report.

  • The Fourth Circuit upheld an injunction barring the discharge of HIV-positive service members. The decision calls the rationale for not deploying HIV-positive service members “outmoded and at odds with current science.” See opinion and reports in The Washington Post and the AP.

  • Finally, the Fifth Circuit made headlines after a divided panel denied a trans-inmate’s request for the court to use female pronouns. See opinion and dissent (begins p. 12) and report from Washington Blade.

State Court news

The San Diego Superior Court tentatively awarded nearly $13 million to twenty-two women in a suit arguing that the women were exploited by porn producers.  The ruling holds that the women had been tricked into performing in pornographic videos and found the owners of the adult website liable for fraud and breach of contract.  See report in NYTimes, San Diego Union-Tribune, and RollingStone.

January 20, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, January 19, 2020

Ramos v. Louisiana: Do the Sixth and Fourteenth Amendments Require Unanimous Jury Verdicts?

In Ramos v. Louisiana, the United States Supreme Court will decide whether the Sixth Amendment requires unanimous jury verdicts. Specifically, in Ramos, by a vote of 10-2, a jury in state court convicted the defendant of murder. Currently, in criminal cases, only Oregon and Louisiana permit criminal convictions where the jury is non-unanimous. In both jurisdictions, a vote of 10-2 is sufficient to convict a defendant.[1]

The answer to the question presented in Ramos depends in substantial part on the text and purpose of the Sixth Amendment, relevant legal doctrine, and the Court’s precedent.

By way of background, the Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a … public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”[2] Additionally, under the incorporation doctrine, the Court has held that the Sixth Amendment’s right to a trial by an impartial jury, like most provisions in the Bill of Rights, applies to the states.[3]

Over the last several decades, the Court has clarified the nature and scope of the Sixth Amendment’s jury requirement. In Williams v. Florida, for example, the Court held that the Sixth Amendment permits six-member juries in criminal cases.[4] Subsequently, in Ballew v. Georgia, the Court held that juries cannot consist of less than six jurors.[5] Perhaps most importantly, in Apodaca v. Oregon, the Court held that, while the Sixth Amendment requires unanimous jury verdicts in federal cases, it does not require unanimous jury verdicts in state cases.[6] The Court’s decision in Apodaca is arguably anomalous because, when a provision in the Bill of Rights is incorporated against the states, the general rule is that the standards established at the federal level (e.g., unanimous jury verdicts) also apply to the states. In Ramos, the Court will confront this issue – and the continuing validity of Apodaca – when deciding whether jury verdicts at the state level must be unanimous.

Several considerations will be relevant to the Court’s decisions. Advocates of a unanimous jury requirement will likely argue that the Founders expected – and the English common law demonstrated – that the Sixth Amendment’s right to impartial jury encompassed a unanimity requirement. Additionally, relying on the historical record, advocates may assert that racial animus motivated Louisiana’s and Oregon’s adoption of a non-unanimous jury requirement.[7]

Conversely, opponents of a unanimous jury requirement may argue that the Sixth Amendment’s text is silent regarding the issue of unanimous jury verdicts, thus leaving this determination to the states. Furthermore, principles of stare decisis support upholding Apodaca and thus giving states the authority to determine whether to adopt a unanimity requirement for jury verdicts.

The Court’s decision is difficult to predict. On one hand, the Court may be sensitive to the argument that non-unanimous jury verdicts silence the voices of dissenting jurors and result in fundamentally unfair convictions, particularly against traditionally marginalized groups. Also, the Court may determine that a unanimity requirement is essential to ensuring the right to a fair trial. Indeed, empirical evidence has demonstrated that such a requirement “strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.”[8]

On the other hand, the Court may be reluctant, under the doctrine of stare decisis, to overturn Apodaca, particularly because at least two states have relied on Apodaca to adopt laws permitting non-unanimous jury verdicts. Moreover, the Court may be concerned regarding the implications of adopting a categorical rule requiring unanimous jury verdicts in criminal cases (at least for felonies). For example, what if a state decides to increase the number of jurors from twelve to eighteen? Would a vote of 17-1 in favor of a conviction violate the Sixth Amendment? What if a state law provided that a non-unanimous jury verdict of 11-1 was sufficient to convict a defendant? The Court will likely have to address these and other questions when deciding this case.

Ultimately, Ramos will likely be decided by a 5-4 or 6-3 margin and based on oral argument, it appears that the Court is leaning toward interpreting the Sixth Amendment to require unanimous jury verdicts.

 

[1] Robert Black, Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury Verdicts? (Oct. 9, 2019) available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts.

[2] U.S. Const., Amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145 (1968).

[4] 399 U.S. 78 (1970).

[5] 435 U.S. 223 (1978).

[6] 406 U.S. 404 (1972).

[7] Black, supra note 1, available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts

[8] Constitutional Accountability Center, Ramos v. Louisiana, available at: https://www.theusconstitution.org/litigation/ramos-v-louisiana/.

January 19, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, January 14, 2020

Settled Precedent or Doctrinal Dinosaur? Handling Stare Decisis.

Extinct bird

Last year was a rough year for the doctrine of stare decisis, the rule that prior precedent should be followed in subsequent similar cases. In 2018, in Janus v. American Federation of State, County and Municipal Employees, Justice Alito quoted from Payne v. Tennessee, a 1991 Rehnquist opinion, reasoning that stare decisis as important because it "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Thus, although stare decisis is not an "inexorable command," past precedent should not be overturned without "strong grounds" for doing so. These grounds included an analysis of the quality of the reasoning, the workability of the rule established, its consistency with related decisions, developments since the rule was handed down, and subsequent reliance on the decision.

In his May 2019 majority opinion in Franchise Tax Board v. Hyatt, Justice Thomas concluded, after analyzing four of these factors, that the first three justified overruling prior precedent. In reaction, Justice Breyer noted in his dissent that believing that a case was wrongly decided cannot justify "scrapping settled precedent."  Instead, according to Breyer, since the dissent in the prior precedent had considered the majority decision to be wrongly decided, but still "plausible," overruling a decision that is not "obviously wrong" simply because the majority now agrees with the prior dissent is "obviously wrong."

The next month, Justice Kagan, writing for the majority in Kisor v. Wilkie, again quoted from Payne regarding the importance of stare decisis, and argued that any departure from the doctrine must be supported by some "special justification" beyond the argument that the prior case was wrongly decided. Finding that the precedent at issue was not "unworkable" or a "doctrinal dinosaur," the majority refused to overturn it. Justice Gorsuch, writing a concurring opinion, seemed to reject Kagan's strict approach, instead returning to the Janus factors created by Alito and suggesting that such factors should permit the overturning of precedent when it "no longer withstands careful analysis."

This back-and-forth battle involves more than just a disagreement over the legal standard for overturning precedent. There are political and social subcontexts that are being flagged in these cases. But that is a subject for a different blog. What I am concerned with is what a practitioner, after all of this sparring, is supposed to do with adverse authority now.

First, it should go without saying that you can't ignore adverse authority. ABA Model Rule3.3(a)(2) states that “a lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Even if you think you can distinguish the authority, or that it is a dead doctrine, you must deal with it.

Second, be sure that you are actually dealing with precedent that is directly applicable to your case. If the authority is distinguishable, you don't need to directly attack it. Just show why the decision does not dictate a result in your case. As Justice Frankfurter wrote, "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference." Reid v. Covert, 354 U.S. 1, 50 (1957) (Frankfurter, concurring). Explain why your differences dictate a different outcome.

Third, when you do have to discuss applicable adverse authority,and you cannot distinguish it, use the structure applied by both sides of the debate whenever possible. Both sides of the debate in the Court give lip service to the idea that stare decisis is not a rigid doctrine. One side seems to focus on whether the prior decision is unworkable or out-of-touch with current law, while the other prefers the multifactoral approach under Janus. Using both approaches therefore seems to be the best bet - quote and use the Janus factors, but focus on why the prior case has become unworkable or is out-of-touch with current law.

Fourth, enlist aid when showing why the prior case is unworkable. Surveys of former Supreme Court Clerks indicate that they find amicus briefs particularly helpful when dealing with complex issues beyond their experience. See Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (Winter 2004). If a doctrine has had an unworkable impact in a particular field, then briefing from amicus in that field may be necessary to get across the point. Consider soliciting that briefing at an early stage, as well as setting out the issue even in intermediate appellate courts.

Fifth, and finally, know your enemy. Understand the underpinnings and history of your adverse authority, so you can help the Court understand how some of those underpinnings may have changed over time. This will require extensive research, but if the Court is going to require "special justification" to change the adverse authority, it will require special effort on your part to explain and justify that departure. This may require some legal digging, but if you can show, at the end, that the adverse case is really a dinosaur, all that digging is worth it.

Thanks goes to appellate lawyer Scott Rothenberg's paper, "Prevailing in the Face of Adverse 'White Horse" Authority" for inspiring this post.

(image credit: Dinornis Elephantopus, Roger Fenton c1854 (Digital image courtesy of the Getty's Open Content Program)).

 

January 14, 2020 in Appellate Advocacy, Appellate Practice, Legal Ethics, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 12, 2020

Great Writers Know When to Break the Rules

Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.

However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.

1.    You can end sentences with prepositions

As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:

Who are you referring to?

Versus

About whom are you referring?

The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.

Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.

2.    You can write a one-sentence paragraph

Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.

In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.

3.    You can use the passive voice

The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:

The rule was violated.

Versus

The Defendant violated the rule.

If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?

Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.

4.    You can use sentence fragments

A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:

Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.

The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.

5.    You can start a sentence with “and” or “but” (or other conjunctions)

Generally, you should not begin a sentence with “and” or “but.”

But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.

The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.

Versus

The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.

Which do you prefer? The first example both reads and flows better.

6.    You can split infinitives

Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:

To boldly go where no man has gone before.

Versus

To go boldly where no one has gone before.

The first example sounds and reads better.

7.    You can use “you” instead of “one”

Sometimes, it is effective to use “you” instead of “one.” Consider the following example:

If one prefers, one may appeal the committee’s decision within ten days.

Versus

You can appeal the committee’s decision within ten days.

The second example sounds better and thus results in more readable prose.

8.    You should frequently use profanity and vulgar language in your legal writing

I’m just kidding. Don’t ever do this!

Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.

January 12, 2020 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise.  As I like to tell my students, since I am not in charge of the world, I cannot offer more time.  However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.  

In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation.  As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’  In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.”  Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000). 

While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions.  For example, Professor Vitiello explains:  “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments.  A lawyer who lacks that skill cannot adequately represent her clients.”  Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006).  Similarly, Professor Hernandez reasoned:  the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.”  Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998). 

Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges.  While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible.  See id. at 74.

The advantages of off-brief oral argument translate well to written work.  Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).  A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches.  See generally Hernandez, 17 Rev. Litig. at 77.  

Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs.  Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows. 

For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client.  Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.

In my first-year classes, I similarly ask students to draft arguments for their opponents.  I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment.  Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments.  Students have shared with me how much they enjoyed being “forced to see the other side” this way.  And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time.  This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.

Have you used an off-brief technique to enhance your writing or teaching?  Feel free to share your ideas in the comments. 

January 12, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, January 3, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 2020

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

Happy New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

  • Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

  • The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.

  • The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
  • Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here

Federal Appellate Court Opinions and News:

  • The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.

  • The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.

  • The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.

  • Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

January 3, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, December 29, 2019

Tips to Immediately Improve Your Writing Skills

Developing excellent writing skills requires time, practice, and repetition. As Justice Antonin Scalia once stated, “there is an immense difference between writing and good writing,” and “it takes time and sweat to convert the former into the latter.”[1] Indeed, developing excellent writing skills is a lifelong process; those who write effectively enhance the persuasive value of their arguments and maximize their chances of succeeding on the merits. Below are tips that will enable attorneys to quickly and significantly improve the quality of their writing.

1.    Eliminate the B.S.

Be sure to eliminate unnecessary words. These words add no persuasive value to your argument and they will likely distract or annoy the reader. Thus, you should eliminate words such as “very,” “entirely,” “only,” “really,” and “actually.”

Also, avoid adverbs, adjectives, and over-the-top language. These words do not enhance the quality of your writing or the strength of your argument. For example, do not say “The defendant ran extremely fast in the store.” Say, “The defendant sprinted into the store.”

2.    Outline your argument

 Before drafting a brief, outline your arguments, including the relevant facts that support those arguments. Doing so will enable you to assess whether the brief is organized effectively, flows well, and includes the relevant facts and legal principles.

3.    Write shorter paragraphs and focus on only one point

When drafting a legal document, such as a memorandum or brief, you should draft short paragraphs (e.g., three to five sentences in length). Long paragraphs can distract the reader and thus fail to keep the reader engaged. Indeed, imagine if you were reading a brief and on every page, you encountered a long paragraph that occupied the entire page. Would you want to keep reading?

Additionally, only discuss one point (or element of a legal argument) in a paragraph, and always begin a paragraph with a topic sentence. Thus, do not include multiple legal arguments (or standards) in a single paragraph because it will disrupt the flow and organization of your argument.

Relatedly, avoid block quotes unless absolutely necessary. Some attorneys reserve block quotes for information that they consider exceedingly persuasive or relevant. However, some judges do not read block quotes, which means that they will skip the passages that you consider most important.

4.    Use headings and subheadings

Heading and subheadings enhance the flow and organization of your argument. For example, the four elements of negligence are: (1) duty; (2) breach of duty; (3) direct and proximate causation; and (4) damages. Thus, when drafting, for example, a memorandum, you can organize your analysis as follows:

A.    Duty

B.    Breach of Duty

C.     Causation

        1.    Direct Causation

        2.   Proximate Causation

D.    Damages

When organized in this manner, your memorandum will flow effectively and the reader will easily follow the logic and flow of your analysis.

5.    Write shorter sentences

Shorter sentences engage the reader and keep the reader’s attention. Longer sentences do the opposite. Furthermore, short and direct sentences can effectively emphasize a particularly favorable fact or legal principle. Thus, as a general rule, avoid sentences that are over twenty-five words.

6.    Vary sentence length

Varying the length of your sentences keeps the reader’s attention. If your brief consists of excessively long sentences, the reader will likely become bored. And if you include only short sentences, your writing will be choppy and lack flow. Ultimately, therefore, to ensure that your brief flows effectively (and to maximize its persuasive value), vary the length of your sentences.

7.    Use transition words to enhance the flow of your document

To ensure that your arguments flow effectively, use transition words such as “Furthermore,” “Moreover,” “Additionally,” and “Also.” Doing so enhances the flow and organization of your argument.

8.    Repeatedly re-write and edit your brief, and do so on paper, not a computer

Studies have shown that writers who edit and proofread their work on paper identify more mistakes than those who edit and proofread on a computer.

9.    Don’t change tenses

Be sure to write your sentences in the same tense. Consider the following example:

The plaintiff walked out of the door and the defendant strikes the plaintiff, causing severe injuries.

Although there may be circumstances when changing tenses is appropriate, you should, as a general rule, maintain the same tense.

10.    Be simple and straightforward

When writing any document, you must consider the audience to whom it is directed. Indeed, the tone, complexity, and style of your writing may change depending on, for example, whether it is directed to a client or court. Regardless of your audience, however, you should always strive to draft legal arguments in a simple, straightforward, and easy-to-understand manner. After all, would you want to read a brief that is riddled with ‘SAT’ or esoteric words, and Latin? Of course not.

11.    Use Grammarly or another reputable editing service

Using a reputable editing service, such as Grammarly, can ensure that you identify most, if not all, of the spelling and grammatical errors in your document.

12.    Purchase books that serve as quick and effective reference tools

Be sure to consult references that will assist you in adhering to grammar and style rules. Books such as The Elements of Style by Strunk and White, or the Texas Manual of Style, are easily accessible and effective references to ensure that your writing is free of grammatical or stylistic mistakes.

13.    Read excellent writing

One of the best ways to become an excellent writer is to read excellent writing. The website below, for example, contains briefs written by the Solicitor General of the United States: https://www.justice.gov/osg/supreme-court-briefs.

 

[1] Edward A. Adams, Scalia: Legal Writing Doesn’t Exist (Aug. 9, 2008), available at: http://www.abajournal.com/news/article/scalia_legal_writing_doesnt_exist.

December 29, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Friday, December 20, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 20, 2019

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

A short post this penultimate week of 2019, crafted between grading final papers and sharing the winter break with family. 

US Supreme Court Opinions and News:

  • The Supreme Court won’t hear the challenge to the Kentucky abortion ultrasound law. The law requires women seeking abortions be given ultrasounds and requires doctors to describe the ultrasounds to the women. Doctors argued that the law violated the First Amendment. The decision leaves the law in place. See reports from NYT, Washington Post, and AP.
  • As a follow-up to the previous posts following this issue: the Supreme Court refused the Justice Department’s request to stay the DC District Court order that blocked four federal executions.  The Court recognized that “it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.” See order here.
  • The Court also will not hear the appeal of the Ninth Circuit decision protecting the homeless who sleep on sidewalks, leaving that protection in place. As this column noted previously, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.  The Ninth Circuit noted that “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” See reports from Washington Post and Reuters.

Federal Appellate Court Opinions and News:

  • This week, the Fifth Circuit ruled on the constitutionality of the Affordable Care Act, holding that the individual mandate is unconstitutional but remanding the issue of severability; thus leaving the law intact for now.  See reports from CNBC, Washington Post, and NYT.
  • The Second Circuit ruled last week that, in limited circumstances, landlords can be liable for one tenant’s racial harassment of another tenant. The decision holds that, under the Fair Housing Act, landlords can be liable if they fail to address tenant-on-tenant race discrimination in the building.  See report from AP and Court House News.
  • The Court of Appeals for the DC Circuit rules that the FDA can regulate e-cigarettes just like conventional cigarettes in this December 10 decision.  The decision recognizes that e-cigarettes are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” See Washington Post report here.
  • According to the District Court for District of Utah, American Samoans are citizens at birth, not non-citizen nationals. See order and CNN coverage.

December 20, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, December 18, 2019

Persuasion Is in the Eye of the Beholder: The Value of Giving the Audience What It Wants, Not just What You Think It Needs

Being a persuasive advocate depends on many things, including the strength and appeal of the message, the delivery, and the audience. This post focuses on the value of considering audience preferences to increase persuasiveness. People are persuaded the most by what they value or what resonates with them. We know from systems like Emergenetics1 and Myers Briggs2 that people have preferences in what types of information they value in decision making. To generalize, some people focus on data to drive their decisions, so an argument that would most resonate with such a person would be an argument that is grounded in data. Others value the impact that a decision might make on a group of people, so an argument that explains the impact of a decision on that group would be best. Others value process and consistency, and still others focus on the big picture, such as moving the law forward for the most people. While the advocate will not have a psychological profile on each judge or audience member in advance of an argument, the advocate would be wise to learn about and recognize the different personality types and ensure that arguments are given that provide a little bit of everything to appeal to the various preferences identified. Moreover, as the advocate learns what motivates the decision maker, the advocate should adjust arguments accordingly.

When an advocate appears before a judge frequently, the advocate may learn what the judge tends to value. Just as important, if not more, the advocate must use listening skills to learn what a judge or judges value during an argument. Listening to questions coming from a judge or other decision maker, the advocate can identify and then address the judge’s concerns. When a judge asks a question, the judge is identifying to the advocate his or her concerns or the concerns of other audience members. Too many times, advocates prepare and deliver arguments without adjusting to address these concerns, missing the opportunity to provide the information that will most resonate with the judge. Agility by the advocate can pay dividends in persuasiveness.

For example, some of the most agile advocates are teenagers who become expert at reading their parents’ unspoken reactions and adjusting their arguments to address their parents’ concerns. The teenager wants to attend a party on a Friday night and begins the argument to the parent by explaining that the parent should allow the teenager to attend the party because everyone will be there. The parent reacts negatively to this argument. The savvy teenager then pivots to an argument based on how attending the party will give the teenager an opportunity to get to know some of the parent’s friends’ children. If this argument works, the teenager closes. If this argument does not work the teenager shifts to an argument based on how attending the party will put the teenager in a better position to get elected to a school position the teenager knows the parent would like the teenager to hold. This dance continues until either the teenager persuades the parent or the parent ends the conversation. The teenager is not likely trained in advocacy; the teenager instinctively realizes that he must appeal to what the parent values to get his way.

In the same way, the advocate needs to listen and be attentive to judges’ concerns and cues. After all, the advocate wants to provide the information the judge needs to find for the advocate’s position. Research shows that decision makers are most persuaded when “requests are congruent with our values, self-image, and future goals. In other words, people are easily persuaded of that which they wanted to do in the first place.”3 

Therefore, to increase persuasiveness, advocates need to speak to the judge in the language that will most resonate with that judge. Advocates can benefit from studying the personality systems referenced herein, which provide information on how best to give each judge or audience member what he needs to make decisions.

1See Emergenetics International, www.emergenetics.com.
2See The Myers & Briggs Foundation, https://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/home.htm?bhcp=1.
3Tomas Chamorro-Premuzic, Persuasion Depends on the Audience, Harvard Business Review, https://hbr.org/2015/06/persuasion-depends-mostly-on-the-audience (June 2, 2015).

December 18, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, December 15, 2019

Writing an Outstanding Appellate Brief

The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.

1.    Frame the issue to maximize the persuasiveness of your argument

One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:

“The case involves whether the Appellee is liable for negligence”

                                                            versus

“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”

The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.

2.    Simplify the issue and argument

Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.

3.    Have an outstanding introduction

An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:

  • Draft a powerful opening sentence that explains why you should prevail
  • Tell the court exactly what you want (i.e., the remedy you seek)
  • Briefly present the most persuasive facts and legal authority that support your position
  • Include a theme that connects all of your arguments

Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.

4.    Tell a story

Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.

5.    Don’t argue the facts (unless absolutely necessary)

Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.

6.    Know the standard of review

Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.

7.    Be honest and acknowledge unfavorable law and facts

Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.

8.    Only present strong legal arguments

Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.

9.    Write, re-write, and edit your brief

Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.

10.    Don’t overwhelm the court with needless legal authority

Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.

11.    Don’t use boilerplate conclusions

Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek

12.    Put yourself in the adversary’s and court’s shoes

When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.

13.    Read great appellate briefs

If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

December 15, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, December 14, 2019

This Holiday Season, All Our Appellate Courts Want Is Good, Civil Writing

In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing.  While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.

The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained:  “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.”  942 F.3d 783, 792 (7th Cir. 2019).  For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog.  https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.

The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility.  Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics.  See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012).  In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law.  658 F.3d at 797-800.  According to Judge Sykes, who also authored McCurry:  “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.”  Stanard, 658 F.3d at 798.   Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in StanardId. at 800-02.

For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise.  I also use the case to show how lack of civility to the court and others inhibits persuasion. 

Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive.  On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”  See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).

Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts.  2019 WL 6242111, *2-4.   In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings.  Id.  After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining:  “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”  Id. at *4.   

This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil.  Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”  Id. at *4.  When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id.  Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.”  Id.  According to the court:  “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”  The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender.  Id. at *5.  As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.”  Id.

The court ended its opinion:  “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.”  Id  According to Briganti,  good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.”  Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.”  Id.

Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal.  MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist:  Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019).  While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past.  Id.

Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions.  And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful.  Happy holidays!

December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Tuesday, December 10, 2019

The Genealogy of Law

In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities,[1]  the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award.[2] This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.[3]

But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?

It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.

Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award.[4] So let’s trace the genealogy of the abuse of discretion standard in these three districts.

Ohio’s Eighth District Court of Appeals

Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review.[5] The court in Cleveland State cited Citibank, N.A. v. White,[6] which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.

An earlier Eighth District case, Miller v. Management Recruiters International, Inc.,[7] had also applied the abuse of discretion.[8] Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co.[9] But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.[10]

Ohio’s Tenth District Court of Appeals

In Dodge v. Dodge,[11] Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support.[12] But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.[13]

The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc.[14] That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education,[15] which in turn cited MBNA American Bank, NA v. E. Paul Jones.[16] The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard.[17] While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard.[18] And Endicott did not say that abuse of discretion was the proper standard of review.[19]

Ohio’s Twelve District Court of Appeals

The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek.[20] Masek held that abuse of discretion was the correct standard of review[21] and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp.,[22] to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.[23]

The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc.[24] The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.

In Buchholz v. W. Chester Dental Group,[25] the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.[26]

These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.

[1] 103 N.E. 3d 804 (2018).

[2] Id. at 805.

[3] Id.

[4] Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).

[5] Cleveland State Univ., 50 N.E. 3d  at 289.

[6] 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).

[7] 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).

[8] Id. at 1166.

[9] 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).

[10] Id. at 849.

[11] 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).

[12] Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).

[13] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).

[14] 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).

[15] 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).

[16] Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).

[17] 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).

[18] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).

[19] Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).

[20] 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).

[21] Id.

[22] L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).

[23] Id.

[24] 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).

[25] CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).

[26] In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).

 

 

December 10, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Friday, December 6, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 6, 2019

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

US Supreme Court Opinions and News:

  • A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week.  See more from CNN and Reuters.
  • After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
  • This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot.  See NYT OpEd here.
  • The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.

Federal Appellate Court Opinions and News:

  • A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association.  See NYTimes article here.
  • The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida.  See AJC article here

State Appeals Court News

  • The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign.  The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word.  See ABA Journal story here.

 

December 6, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)