Appellate Advocacy Blog

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

Monday, March 30, 2020

Clear is Kind When It Comes to Scheduling During a Pandemic

Tomorrow is the last day of March, and if internet memes are to be believed, this month has felt a lot longer than its 31 days. It certainly has for me. At the beginning of March, I was still teaching classes in-person, still eating out, still thinking we would be finishing our semester in-person. Some Supreme Court advocates thought they would argue before the Court; litigants thought their cases would be heard. COVID-19 appeared only a distant threat.

As Spring Break at my University stretched on, we were on a rollercoaster (as many of you were, too), not knowing if we were coming back after Spring Break, then an extension on Spring Break, then online teaching until April 3rd, and then finally we received word that we would be teaching online for the rest of the semester. While it has all been challenging, I have felt my anxieties lessen as I have more of a concrete sense of what work will look like, even as COVID-19 has become a growing, terrible reality. Knowing that we will be staying home and working remotely for an extended period of time has given me an ability to focus, which was elusive in the middle of the month when everything was up in the air.

Seeing this headline today on CNN, “Spring cases in limbo without Supreme Court guidance on arguments during pandemic” gave me real empathy for the litigants and attorneys whose cases are in limbo. While the Supreme Court issued another order on March 19, 2020, lengthening deadlines for filing petitions and stating that motions for extensions would be granted as a matter of course, these “modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument.” Some cases are still scheduled for arguments in late April, despite President Trump’s extension of the social distancing orders though the end of April. Additionally, there have been no announced plans for when the already-cancelled oral arguments from March will be held. Some are criticizing the Court’s unwillingness to adopt new technology, as many other courts are doing, in order to hear some of the important cases scheduled. Perhaps this pandemic will be what shifts some of the Court’s traditions, but there has been no indication of that so far.

I’m a fan of the Brené Brown idea that “clear is kind, unclear is unkind,” and in times of uncertainty it is especially true. We know leaders do not have all the answers, but our institutions, including the Supreme Court, need to make and publish clear guidance on how that institution will function. Over-communicate in a time of crisis. More guidance and clarity from the Court will allow litigants, attorneys, and the entire country to adjust as quickly as possible, just as we are all adjusting to staying at home.


March 30, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 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:

  • The Supreme Court ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Saturday, March 21, 2020

One Successful Process for Zoom Moot Court Competitions

I hope everyone is staying safe as we navigate our new COVID-19 reality.  In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online. 

At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom.  We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online.  As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support.  In an effort to pay that support forward, I am sharing our process here.  I hope our lessons can help other schools and moot court competitions make this transition.  Our experience was very positive.  The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us. 

In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments.  See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom).  Currently, courts all over the country are holding their oral arguments online.  See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).

We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom.  We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling.  Happily, about half of our first-year students still chose to participate. 

We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds.  With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms." 

To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links.  These judges also kept time, though we had the students run timers on their phones too.  We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.

Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link.  We asked hosts to name their meetings "Courtroom One 4:15," and so on.  We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times.  We shared the sheet with the courtroom assignments and links to all of our first-year competitors.   

We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges.  Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.

We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed.  We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help.  The next morning, our three courtrooms ran without a hitch.  Having trusted judges as hosts really helped, and we recommend this approach.

We made our score sheet into a Google Form for the judges.  It was fun to watch the scores roll in after the rounds.  Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data.  These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.

We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night.  We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench.  We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential. 

In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online.  Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too. 

March 21, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument, Web/Tech | Permalink | Comments (0)

Monday, March 16, 2020

Excellent Legal Research and Writing Textbooks for Law Students (and Lawyers)

Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.

Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)

In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.

Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)

In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.

Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)

Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.

Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)

Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.

Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)

Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.

Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)

In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.

Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)

Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.

William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)

The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.

Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)

Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips. 

Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)

In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.

Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.

March 16, 2020 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, March 13, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 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:

  • The Supreme Court will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.

  • This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.

  • A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.”  The study looks at the history of the practice and its effect on the adversarial process.  See the study and a report in the NY Times.

Federal Appellate Court Opinions and News:

  • The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.

  • The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).

  • The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.

COVID-19 and the Courts

COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1.  For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.

March 13, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 8, 2020

Oral Argument Recap: June Medical Services, LLC v. Russo

On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.

By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion.[1] In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.

The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas.[2] In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.

At oral argument, the justices appeared divided.[3]

Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.

Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.

Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.

Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.

Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”

And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.

Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.

I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.[4]

Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.

Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.

[1] 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).

[2] 579 U.S.             ; 136 S. Ct. 2292 (2016).

[3] See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.

[4] Id. at 61:24 to 62:9.

March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 3, 2020

Make the Standard of Review Work for You

Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.”[1] But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed.[2] Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.”[3] Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.

In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.[4]

West Branch involved the non-renewal of a teacher’s contract.[5] The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure.[6] A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.[7]

The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code.[8] In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal.[9] The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.[10]

The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance.[11] The school board's superintendent denied the grievance and the association then submitted a request for arbitration.[12] That prompted the school board to file a lawsuit to enjoin the association from going to arbitration.[13] The trial court granted a permanent injunction in favor of the school board.[14] The association appealed the trial court’s judgment.[15]

The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion.[16] The association, however, argued that the court of appeals should review the trial court’s judgment de novo.[17]  The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement.[18] The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo.[19] The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment,[20] a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.

 

[1] Standard of Review, Black's Law Dictionary (11th ed. 2019).

[2] Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).

[3] Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).

[4] 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).

[5] Id. at 553.

[6] Id. at 552.

[7] Id. at 555.

[8] Id. at 555-58

[9] Id. at 552.

[10] Id.

[11] Id. at 553.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id. at 554-59.

March 3, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, March 1, 2020

The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints

Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”[1]

Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean.[2] Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.[3]

Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.[4]

Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.”[5] As Justice Ginsburg explained:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.[6]

Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.”[7] Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”[8]

In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.”[9] As one commentator described:

They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).[10]

Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”[11]

Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”[12]

[1] Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

[2] See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap

[3] See id.

[4] 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).

[5] Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

 [6] Id. (emphasis added).

[7] Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1

[8] Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html

[9] David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).

[10] Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.

[11] Williams and Fieldstadt, supra note 1, available at:  https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).

[12] Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).

March 1, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, February 28, 2020

Consider Doing Initial Oral Argument Preparation As You Finish Your Brief

 Every appellate practitioner knows oral argument rarely changes a case outcome.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).   However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument.  This time can be hard to justify to clients, but an advocate must be prepared for oral argument.  See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).

In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing.  For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief.  Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.

In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar.  My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place.  This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page.  Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument.  The binder should be tabbed and organized for very quick reference.   The process of making the binder is also very useful for both final brief editing and oral argument preparation.

On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court.  Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early.  See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020).  Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table.  One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points.  Advocates also have an organized binder if they do need to check something quickly.

In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side.  The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief. 

I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents.  Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading.   I ask my first-year students to make this page before turning in their briefs.  I suggest they then use the paper as an editing checklist for the brief.  The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing.  Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.

In the law school setting, making the oral argument sheet before filing the brief is also efficient.  First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument. 

In practice, however, we often wait months after filing a brief for oral argument.  Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice.  By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument.  Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time.  Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.     

For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder.  Doing so can show where you have missed something in briefing and can save time later. 

February 28, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, February 23, 2020

When Drafting a Brief or Preparing for an Oral Argument, How Do You Know When to Stop Researching?

One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”

This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.

To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.

1.    Identify the appropriate scope of your research

Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent.  When making this determination, ask yourself the following questions:

  • Is your case in state or federal court?
  • Does your case involve a state or federal issue?
  • Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
  • Are you arguing for a correction in a lower court's decision or an expansion of the law?
  • Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?

For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts. 

You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.

Importantly, the above advice applies to cases where you are arguing for a correction in the law.

If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.

Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.

Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.

2.    Look for repetition

You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently.  Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.

You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.

3.    Review the cases in your opponent’s brief

You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.

4.    Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue

To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.

5.    Identify the cases cited by courts in prior decisions

You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.

6.    Research the subsequent history of the cases you cite in your brief

Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.

The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.

February 23, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Wednesday, February 19, 2020

Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students

A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.

First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record.  These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.

Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.

Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.

In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.

 

1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).

2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).

February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)

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)