Saturday, May 15, 2021
While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship. Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website. See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).
Reardon aptly concludes: “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.” Id. As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.” Id.
As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively. In so doing, we can also use our privilege to serve as allies for underrepresented groups.
How do we combine communication with allyship? Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.
Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful. Id. Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.” Reardon, Inclusive Language Is Allyship.
We can also connect our language to allyship with a full understanding of what being an ally can entail. As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society." Samantha-Rae Dickenson, What Is Allyship? (Nat’l Inst. of Health Jan. 28, 2021). “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.” Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).
As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.”
I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others. If you are interested in seeing more of the 2Civility website and programs, you can subscribe here for the Commission’s weekly newsletter.
Sunday, May 9, 2021
In the past year, COVID-19 has transformed how legal education – and legal writing – is delivered to students. Online instruction replaced in-person instruction, professors and students were forced to adapt quickly to an alternative learning format, and grading policies were adjusted to account for the unique hardships that online learning engendered for many law students. And all of this occurred while administrators, faculty, and students were living in fear of a virus that has killed more than 570,000 citizens in the United States.
Notwithstanding, the challenges involved in transitioning to online learning – along with the challenges of transitioning to in-person instruction post-COVID – need not compromise the transformative and practical instruction that legal writing courses can effectuate, regardless of whether through online or in-person instruction. Indeed, several universal principles or designs can ensure that students learn real-world writing and critical thinking skills in online and in-person contexts. Those principles are below and can be useful to both new and experienced legal writing faculty to ensure that legal writing courses provide students with the competencies to succeed in law school and the legal profession.
1. Connect legal writing to the real world – a memo and appellate brief are not sufficient.
The best legal writing courses and curriculums connect pedagogy and assignments to the real world. To do so, legal writing professors should require students to draft and re-draft the most common litigation documents in their courses, including complaints, answers, motions to dismiss and motions for summary judgment, trial briefs, and appellate briefs. And these assignments should be given in the order they would be drafted in practice.
To accomplish this objective, legal writing professors should, either individually or collaboratively, draft a detailed hypothetical fact pattern that includes substantive issues from all first-year courses and requires students to “litigate” a hypothetical case from the complaint to appellate brief in the first year of law school (or the first three semesters). The assignments could be administered as follows:
Legal research assignment (one or more issues in the hypothetical)
Predictive memorandum (closed research)
Re-write of the predictive memorandum with one or more issues added (open research)
Answer (which allows students to self-critique their complaint consider a legal issue from an opposing perspective)
Motion to Dismiss
Motion for Summary Judgment (with previously prepared discovery provided)
Re-write of the Motion for Summary Judgment
Re-write of Appellate Brief
Appellate court opinion (students assume the role of judge and draft an opinion affirming or overturning the lower court)
This format will allow students to gain experience in drafting and re-drafting the most common litigation documents in the order that they would be drafted in practice, thus enabling students to understand the ‘big picture’ of how law is practiced, and gain experience in applying predictive and persuasive writing techniques to various real-world documents and contexts. Perhaps most importantly, this approach enables professors to focus on persuasive advocacy from day one, in which students will be required to, among other things, formulate a theme and theory of the case, distinguish relevant from irrelevant facts, and synthesize the law to present a compelling legal argument. Of course, this would not eliminate instruction on predictive writing; it would simply incorporate the predictive writing component into the litigation and sequence it appropriately.
2. Prioritize integration over separation – legal writing assignments should be connected to doctrinal courses
When drafting a multi-issue hypothetical that allows students the opportunity to litigate a hypothetical case from the complaint to the appellate brief, law professors should include issues from the students’ required first-year courses. Doing so will enable students to apply the legal doctrines that they are learning in their required courses to real-world contexts and help students to understand how these doctrines operate in law practice. Furthermore, by applying foundational legal doctrines (e.g., personal jurisdiction, negligence) to a real-world fact pattern, students will simultaneously improve their writing and critical thinking skills and learn how to effectively analyze legal issues, which will maximize their performance on end-of semester-exams and enhance their ability to think like lawyers.
For example, a multi-issue fact pattern in a first-year legal writing curriculum can include issues such as negligence, personal jurisdiction, assault and battery, proximate causation, and supplemental jurisdiction. By connecting the assignments in legal writing courses to the topics students are learning in doctrinal courses, the legal writing curriculum will be an essential and integrated part of the curriculum.
3. Require students to read excellent writing
Before students write, they should read excellent legal writing texts and documents. After all, students need to understand what good writing is before they can become excellent legal writers. For example, professors should require students to read Plain English for Lawyers by Richard Wydick and Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which is a perfect example of outstanding storytelling and persuasive advocacy.
4. Make the Rule of Three a cornerstone of legal writing instruction.
The Rule of Three is an effective technique to maximize the persuasive impact of an argument. This technique instructs students, when making legal arguments, to identify three reasons that support a desired outcome or remedy. Social science research demonstrates that the Rule of Three effectively simplifies and organizes an argument for the audience, and appeals to the audience because people respond positively and attentively to arguments that are delivered in sets of three.
5. Teach students how to re-write and edit, not just write
Excellent writing requires excellent editing.
Indeed, to write effectively, students must understand and embrace the writing process, which consists of the: (1) first draft; (2) rewriting phase; and (3) revision phase. Thus, legal writing professors should instruct students on macro and micro level editing, including issues such as organization, conciseness, word choice, grammar, and style. Put simply, if students do not understand how to re-write and edit effectively, they will not write persuasively.
Perhaps the best way to train students in re-writing and editing is to provide them with a legal brief written by a practicing attorney and require them, individually or in groups, to re-write and edit the document, and explain why their edits made the document flow better and present the arguments more persuasively.
6. Include time-pressured assignments
As every lawyer knows, legal documents must often be drafted under strict time constraints. Thus, law students should gain experience in drafting real-world documents under the pressures that attorneys face daily. For example, legal writing instructors can require students to draft a rule section explaining the law of defamation and give students, either individually or in groups, twenty-four hours to complete the assignment. Doing so enables students to continue developing their legal writing skills while simultaneously coping with the pressures that they will encounter in law practice.
7. Include simulations and require students to argue opposing viewpoints
When using a multi-issue hypothetical that requires students to litigate a case from the complaint to the appellate brief, legal writing faculty should include simulations, such as a client interview, presentation of the law to a partner, settlement negotiations, and trial and appellate court oral arguments. The point is to train students to communicate effectively and interpersonally, which essential to excellent counseling and advocacy.
8. Truly ‘Flip the Classroom’: Turn the students into teachers
Students should be challenged in the legal writing classroom and curriculum – and treated as peers. One way to do this is to truly flip the classroom by requiring students, as part of an assigned group, to teach particular classes that discuss topics such as IRAC/CRAC, case synthesis, and binding versus persuasive legal authority. Doing so will ensure that the ‘teaching students’ master the relevant material and gain experience in public speaking and communication. Also, this exercise can empower students and create an environment in which they are views as peers in a collaborative learning process.
9. Stay away from politics
No one cares about your political views. More specifically, no student wants to enroll in a course where they will be subject to ideological indoctrination. Students learn best – and are motivated to learn – in a classroom where they feel welcomed and accepted. As such, classrooms should be places in which all views – liberal, conservative, libertarian, and whatever else – are welcomed and respected. Thus, to promote diversity of viewpoint and experience, law professors should never make statements or design assignments that strive to advance a particular point of view or agenda. Doing so is antithetical to creating a diverse and inclusive classroom environment.
10. Be available – always
Great professors care deeply about their students’ success and demonstrate that commitment by being accessible and available to every student – even in the evenings and on weekends. Indeed, getting to know each student individually – and establishing productive relationships with each student – inspires trust and motivates them to work hard and succeed. For these reasons, go the extra mile and be available to students whenever they need advice or assistance. It shows that you care, which inspires students to excellent lawyers – and citizens.
Ultimately, the best legal writing professors realize that their mission is not about them – it is about improving the skills and lives of their students. These tips will help in achieving those objectives and make the legal writing curriculum a place where students learn to become great lawyers and great people.
 See Adam Lamparello & Megan Boyd, Legal Writing for the Real World (LexisNexis, 2014).
 See Adam Lamparello & Charles E. MacLean, The Guide to Experiential Legal Writing (Carolina Academic Press, 2015).
 See, e.g., Kathleen Elliot Vinson & Sabrina DeFabritis, Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice, 122 West Va. L. Rev. 107 (2019).
Monday, April 26, 2021
Recently the Fifth Circuit issued a 325 page opinion in an en banc case, Brackeen v. Haaland, which concerns the constitutionality of the Indian Child Welfare Act. The actual per curiam opinion is only 5 pages. But then you have the concurrences and dissents. Figuring out who joined what part of what opinion could be an LSAT logic game. I want to read all of the opinions, I am interested in ICWA issues, but the time that it would take to really sit down and process it is pretty overwhelming--like reading a novel!
Luke Burton, a career clerk on at the Eighth Circuit, recently published an article in The Journal of Appellate Practice and Process on the need for shorter appellate opinions. In the (short) article, Burton postulates a few reasons why judicial opinions are getting longer and offers some virtues of shorter opinions. I want to just focus on one of his points--public participation in the judicial system. Burton argues that long opinions "encourage public ignorance of the law and the courts" because "[i]n today's 280-character culture, the public simply does not have the attention span to spend hours reading judicial opinions." Amen to that. Long opinions take a long time to read, and then an even longer time to analyze, which can lead to another problem Burton notes--"misinterpretation." Burton cites an example of misinterpretation from his own court. Misinterpretation, of course, can also destroy public confidence in the courts as an institution and lead to more division and strife.
Some cases are complex and may require lengthy opinions, and perhaps the Brackeen case fits the bill. Hopefully this summer I will have time to relax by the pool and read it, instead of the latest novel that has been released.
Saturday, April 24, 2021
In Jones v. Mississippi, the United States Supreme Court ruled by a 6-3 margin that a sentence of life imprisonment without parole for a fifteen-year-old juvenile who was convicted of murder did not violate the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s decision will likely engender criticism because it is arguably inconsistent with the Court’s precedents.
By way of background, in Roper v. Simmons, the Court held that it was unconstitutional to impose capital punishment for crimes that an individual committed while under the age of eighteen. In so holding, the Court emphasized that juveniles’ brains are not fully developed and, as such, juveniles lack the maturity of adults and often engage in impulsive conduct that reflects a failure to appreciate the consequences of particular actions. For these reasons, juveniles are less culpable than adults and therefore not among the narrow category of offenders for whom the death penalty is warranted. Additionally, in Miller v. Alabama, the Court relied in substantial part on the differences between juveniles and adults to hold that laws authorizing mandatory sentences of life without parole for juvenile offenders convicted of murder violated the Eighth Amendment. The Court emphasized that a juvenile’s crime often reflects “unfortunate but transient immaturity,” and that a sentence of life without parole should be reserved for a narrow category of juvenile offenders “whose crimes reflect irreparable corruption” or “permanent incorrigibility.” Accordingly, imprisonment for life “is a disproportionate sentence for all but the rarest children.” And in Montgomery v. Louisiana, the Court held that the rule announced in Miller applied retroactively to juveniles previously sentenced to life without parole, thus requiring re-sentencing for these offenders. Finally, in Graham v. Florida, the Court held that sentencing juveniles to life imprisonment without parole for non-homicide offenses violated the Eighth Amendment.
The Court’s decisions in Miller and Montgomery arguably require that, before a juvenile can be sentenced to life without parole, a court must determine whether a juvenile’s crime reflects “unfortunate yet transient immaturity,” therefore precluding a sentence of life without parole, or “irreparable corruption” (permanent incorrigibility), thus justifying the imposition of such a sentence.
In Jones, the Court’s decision, although not technically inconsistent with Miller and Montgomery, certainly appears at odds with the spirit and purpose underlying these decisions. Writing for the majority, Justice Brett Kavanaugh noted that Miller only prohibited the imposition of mandatory sentences of life without parole for individuals who were minors when the crime was committed. In Jones, however, the trial court had the discretion to impose a lesser sentence on the defendant – who was fifteen at the time of the crime – and thus did not violate Miller by exercising that discretion to impose a sentence of life without parole. Furthermore, because Graham v. Florida only prevented the imposition of life without parole for non-homicide offenses, it violated neither Miller nor Graham to impose a discretionary sentence of life without parole for a homicide offense. Furthermore, Justice Kavanaugh stated that, when exercising such discretion, a trial court is not required to determine whether a juvenile’s crime reflected “transient immaturity” or “irreparable corruption,” the very distinction upon which Miller relied to identify the narrow category of juvenile offenders for whom life imprisonment without parole could be justified. Rather, it suffices that a court has the discretion to consider youth as a mitigating factor – even in the absence of a record showing that the court considered this issue to a meaningful degree.
The Court’s decision in Jones appears inconsistent with Miller and Montgomery and casts doubt upon their continued viability. First, if a sentence of life without parole should be, as the Court stated in Miller, reserved for a narrow category of juveniles who demonstrate irreparable corruption (or permanent incorrigibility), it seems logical and constitutionally necessary for courts to determine at sentencing that a juvenile falls within this narrow category. Holding that a sentence of life without parole is permissible simply because the lower court had the discretion to impose a lesser sentence – even if the court did not meaningfully exercise this discretion as Miller and Montgomery contemplate – eviscerates the precedential value of these decisions.
Second, as the Court in Roper, Miller, and Montgomery recognized, juveniles lack fully developed brains and the capacity to act with the same degree of maturity as adults. For that reason, only juveniles whose conduct reflects “irreparable corruption” may be sentenced to life imprisonment without parole. Unfortunately, by refusing to require a finding that a juvenile falls into this narrow category, the Court’s holding in Jones eviscerates the distinction between juveniles whose actions reflect “transient immaturity” and those whose actions reflect “irreparable corruption.” And Jones arguably undermines, at least to a degree, the distinction previously recognized by the Court between juvenile and adult culpability. After all, in Roper and Miller, the Court relied on the differences between juveniles and adults regarding brain development, maturity, and rational decision-making to hold that juveniles are less culpable for even the most serious crimes. After Jones, the Court appears willing to relegate decisions regarding culpability to courts who have the “discretion” to impose lesser sentences while imposing no requirements on how courts exercise this discretion.
Put simply, Jones cannot be reconciled with the Court’s prior jurisprudence, suggesting yet again that stare decisis is a doctrine of convenience rather than conviction. Indeed, Chief Justice Roberts, despite pledging fidelity to stare decisis in June Medical Services v. Gee, where he voted to invalidate a Louisiana law requiring abortion providers to have hospital admitting privileges, joined the majority in Jones and appears to have an on-again, off-again relationship with stare decisis. And given that Roberts seems to care more about public perceptions of the Court rather than constitutional law, his decision to inconsistently apply the doctrine is surprising because it undermines the very institutional legitimacy he strives to preserve.
Third, the Court failed to address the concern that permitting a judge to consider youth as a mitigating factor violates precedent holding that the Sixth Amendment requires juries, not judges, to make such factual findings, particularly where they may result in an increased sentence.
Ultimately, the Court’s decision in Jones confuses, rather than clarifies, the law regarding whether, and under what circumstances, juveniles can be sentenced to life imprisonment without parole. And by countenancing such sentences simply because a court has the discretion to impose a lower sentence – without any requirement that a court determine that a juvenile’s actions reflect irreparable corruption – the Court turned a blind eye to the risk that sentencing in this area will become arbitrary and unfair.
The decision was a mistake.
 593 U.S. (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)
 543 U.S. 551 (2005).
 567 U.S. 460 (2012).
 Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.
 Montgomery, 577 U. S., at 195.
 577 U.S. , 136 S. Ct. 718 (2016).
 560 U. S. 48 (2010)
 Miller, 567 U. S., at 479; Montgomery, 577 U. S., at 209.
 593 U.S. (2021), available at: 18-1259 Jones v. Mississippi (04/22/2021) (supremecourt.gov)
 See id.
 See id.
 See id.
 591 U.S. (2020), 2020 WL 3492640.
Sunday, April 18, 2021
George Floyd’s death, which was captured on video, is difficult to watch and, quite frankly, disturbing. In that video, former Minneapolis police officer Derek Chauvin kneeled on Floyd’s neck for over nine minutes, including several minutes after which Floyd had lost consciousness. Floyd’s death sparked protests (and, in some areas, riots) throughout the country for many months and, over the last three weeks, Chauvin has stood trial for Floyd’s murder in Minneapolis. Both the prosecution and defense are expected to deliver closing arguments tomorrow and the jury may begin deliberating as soon as Tuesday.
When deliberations begin, the jury will consider the following three charges against Chauvin: (1) second-degree unintentional murder (felony murder); (2) second-degree manslaughter; and (3) third-degree murder. Second-degree unintentional murder, which carries a prison sentence of up to forty years, applies to a defendant who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second-degree with force or violence or a drive-by shooting.” Under Minnesota law, the underlying felony must pose a “special danger to human life,” thus requiring at least some risk of death. Second-degree manslaughter applies where an individual’s death results from “the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Third-degree murder applies to individuals who “without intent to effect the death of any person, cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
Determining which, if any, charge will result in a conviction is difficult to predict. During the trial, the prosecution, led by Minnesota Attorney General Keith Ellison, presented thirty-eight witnesses. This included testimony from Minneapolis Police Chief Medaria Arradondo, who stated that Chauvin’s decision to kneel on Floyd’s neck was not an approved police technique and that Chauvin should have ceased kneeling on Floyd’s neck when he longer presented a threat to the officers (the evidence shows that Chauvin continued restraining Floyd for approximately three minutes after Floyd was unconscious). Additionally, the prosecution presented numerous medical experts who testified that hypoxia, which is a low level of oxygen that leads to asphyxia, caused Floyd’s death, and that the asphyxia resulted from Chauvin kneeling on Floyd’s neck for over nine minutes.
The defense, led by attorney Eric Nelson, argued that Floyd’s death was caused by a combination of factors unrelated to Chauvin’s actions, such as drug use and heart disease. For example, the toxicology report revealed that Floyd had ingested a potentially lethal amount of Fentanyl, and that Floyd had methamphetamine and THC in his system. Additionally, Floyd had atherosclerosis and hypertensive heart disease. The defense’s expert, Dr. David Fowler, concluded that these conditions, coupled with the drugs Floyd ingested and his inhalation of carbon monoxide from the squad car, collectively caused his death. The defense also presented a use-of-force witness who testified that, under the circumstances, Chauvin did not use excessive force.
It is difficult to predict whether the jury will convict Chauvin and, if so, what charge will most likely result in a conviction. The prosecution’s witnesses, particularly Minneapolis Police Chief Medaria Arradondo and Dr. Martin Tobin, were quite compelling. Defense attorney Eric Nelson, however, effectively cross-examined several witnesses and focused extensively on drugs and heart disease as the causes of death.
Arguably, the causation issue will most likely consume much of the jury’s deliberations and will require a determination of whether Chauvin’s actions – or drugs and heart disease – caused Floyd’s death. Indeed, given the amount of Fentanyl in Floyd’s system and his underlying cardiovascular conditions, it may be difficult for jurors to conclude beyond a reasonable doubt that Chauvin caused Floyd’s death. Importantly, however, the prosecution need only show that Chauvin’s actions were a contributing cause of Floyd’s death, which renders a conviction more likely.
Ultimately, considering the arguments, testimony, and evidence, it seems that, if the jury does convict Chauvin, it will likely be for second-degree manslaughter. A conviction on the third-degree murder charge is implausible because Chauvin’s actions, although reprehensible, did not threaten to harm multiple persons or “others” as the statute requires. Also, a conviction on the second-degree unintentional murder charge seems less likely (although possible) because the felony murder statute has rarely, if ever, been applied to law enforcement officers in the context of restraining a suspect. This is particularly true concerning a suspect who is resisting arrest because, at least for a portion of the time, the restraint used is arguably justified. In addition, given that Chauvin was unaware of the level of Fentanyl in Floyd’s system or of his preexisting heart conditions, it may be difficult to demonstrate that Chauvin intended to inflict bodily harm on Floyd or that he knew his actions were likely to result in such harm. However, a conviction on second-degree manslaughter is arguably justified because Chauvin was culpably negligent by kneeling on Floyd’s neck for minutes after Floyd was unconscious and thus no longer presented a threat to the officers. Indeed, Chauvin’s failure to stop kneeling on Floyd’s neck despite his lack of consciousness cannot be justified.
If the jury returns an acquittal, it will almost certainly result from a belief that, although Chauvin’s actions were appalling and entirely unnecessary, they did not cause Floyd’s death. This is certainly a possibility and will depend on the jury’s assessment of the experts’ credibility and of the relevant medical reports.
Also, if the jury returns a guilty verdict, defense attorney Eric Nelson (or whomever Chauvin retains) will almost certainly appeal. Specifically, Nelson will likely argue, among other things, that Judge Peter Cahill’s refusal to change the venue for the trial deprived Chauvin of the right to a fair trial. And if the jury returns a guilty verdict on the third-degree murder charge, it may be overturned on appeal because Chauvin’s actions, however deplorable, did not threaten harm to multiple people.
Regardless, George Floyd’s death was a tragedy. The video of his death is appalling. Whatever the jury’s verdict, this incident will hopefully lead to reforms in how police are trained in the use of force and de-escalation techniques, such that an incident like this never occurs again.
 Minn. Stat. 609.19(1).
 Minn. Stat. 609.205(1).
 Minn. Stat. 609.195.
Saturday, April 17, 2021
Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment
On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand. See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf. As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper. Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).
Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst. See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html. The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense. Order at 1-2. The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction. After hearing argument from counsel, Judge Fuerst denied the jury instruction request. Id. at 2.
Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.” Id.; Weiss, ABA Journal at 2. Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.” Order at 2. Baker admitted to the Board: “’I moved away from the table so it was clear I'm not participating.’" Id. Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record. When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed. Id.
In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500. Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:
- I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
- I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.
Baker immediately complied with Judge Fuerst's order and paid the $500 fine. In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases.
Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.” Order at 3. Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’” Weiss, ABA Journal at 2. “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal. But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.” Id.
Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court. Id. Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct. An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings. Order at 3.
Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed. Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs). As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did.
Sunday, April 11, 2021
Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.
Almost immediately, critics claimed that Georgia’s law was racist. Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.
Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”
And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”
But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.
First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number. Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters. Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.
Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays. Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.
Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed. The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.
Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box. However, the law permits poll workers to create self-service areas where voters can hydrate. And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.
Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election. Again, the racist aspect of this provision is not immediately apparent.
Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.
The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. 
Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout, can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.
Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law. In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”
Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.
 See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News
 See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)
 See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)
 Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)
 See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox
 See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial
Sunday, March 28, 2021
Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.
But social media and online blogging also have drawbacks.
For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.
Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.
Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory. This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.
By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.
Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.
The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.
After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:
Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.
Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts." For example:
[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.
Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable." Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.
For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.” The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.
In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.
 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
 Milkovich, 497 U.S. at 18 (internal citation omitted).
 Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).
 Id. at 575-576.
 Id. at 579.
 Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).
Saturday, March 13, 2021
As all appellate practitioners know, legal research takes a great deal of practice. Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience. Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters. Illinois has a new program to connect law student researchers and pro bono attorneys.
The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services. https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/. As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.” Id. The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice. Id. The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.” Id.
PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.” https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/ Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).” Id. Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance.
Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.” Penelope Bremmer, PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).
Illinois modeled its Alliance on the similar University of Nebraska College of Law program. See https://law.unl.edu/ProBonoResearch/. Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “ Id. Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law. Id.
Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].” See id. Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.
Friday, March 12, 2021
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 allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions. He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.
The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.
Federal Appellate Court Opinions and News
The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional. See the order and reports from US News and the CT Mirror.
The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.
State Appellate Court Opinions and News
The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing. See the ruling and a report from the Associated Press.
- On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.
Sunday, February 28, 2021
Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.
Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.
Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.
Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?
Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.
Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.
Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.
Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.
End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.
Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor. Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.
Tuesday, February 23, 2021
As the calendar turns to February, the stress of moot court teams preparing for their competitions is palpable in law schools around the country. Students spend countless hours in practices to ensure they are ready on the day of the competition. Often, they spend countless additional hours wallowing in self-doubt over their preparation. Did I do enough to get ready? Have I structured my argument in the most persuasive manor possible? Is practicing more better for me, or should I relax and try to get some rest before the big day?
To those nervous advocates, I offer a simple mantra. Overprepare. Don’t over-rehearse.
By overprepare, I mean that advocates should always strive to be ready for the competition as early as possible. Moot court practice is often psychologically painful. Early practices are invariably embarrassing, as a guest judge is almost certain to ask a question the advocates never considered, catching them flat-footed as they grasp for an answer. But this experience need not feel embarrassing. In fact, it’s the whole point. Practice should expose advocates to as many views of the case as possible, allowing them to feel comfortable that, on the day of the argument, there’s nothing truly unexpected that any questioner can throw at them. The early stumbles are necessary signs of growth. And the earlier they occur, the more likely advocates will be able to adjust their presentation and prepare themselves to answer the difficult questions. Those stressful moments expose the gaps in logic that must be resolved before making an effective argument. Advocates should overprepare by starting early, soliciting challenging views whenever possible, and testing out a litany of analytical approaches while staying in character to see what feels most natural, candid, and convincing.
But advocates should not over-rehearse. There is a fine line between learning how to explain the nuances of the problem and the logical gaps of one’s position and memorizing a stilted script to present to a new group of judges. Advocates must avoid the temptation to generate precisely-phrased responses to each possible question. Often, this leads advocates to fall back on a script during argument. That script builds a wall between the advocate and their audience. It forces the advocate to offer stock, generalized answers to judges’ questions, rather than internalizing the questions, processing their nuances, and offering genuine, original responses that fully addresses the judges’ concerns.
One method to overprepare without over-rehearsing is to catalogue some of the most difficult questions faced in practices, jot them down in a deck of note cards, then mix the deck and practice responding to the questions in random order—no matter where they fall in a planned outline of the issues. This will force advocates to provide original responses to the questions in order to weave their presentation back into the original argument structure. Rather than generating canned responses, the advocate will deepen their neural network around the problem, recognizing the relationships between issues and concepts and learning to tack between them smoothly. That mental pliability is a learned skill, not an innate talent. It takes a great deal of preparation, but it can be mastered by anyone willing to put in the necessary effort. And it cannot be reduced to a scripted series of rehearsed answers.
Advocates often work harder in moot court preparation than they have in almost any other aspect of law school. But concerns about perfection can lead them to work in counter-productive ways. A perfectly-scripted answer is not the goal. Instead, advocates must aim to deepen their understanding of each issue so they can comfortably respond in unique ways to each uniquely nuanced question they face. Overpreparation with that goal in mind, while avoiding over-rehearsing, will lead to an argument performance that will make any nagging moot court coach proud.
Saturday, February 13, 2021
Opening statements are among the most critical aspects of a trial. Indeed, the opening statement provides attorneys with the opportunity to, among other things, make an excellent first impression with the jury, highlight the most favorable facts supporting an attorney's argument, and establish trust and credibility with the jury. Below are tips to maximize the persuasive value of an opening statement.
Begin with a theme. First impressions are critically important, whether it is at a trial, in an interview, or during an audition. For that reason, it is vital to start strong when delivering your opening statement. A powerful beginning, among other things, gets the jury’s attention and establishes your credibility immediately. To ensure that you deliver a persuasive and powerful opening, begin with a theme. A theme is a concise, one-sentence statement that explains what the case is about and, more importantly, why the jury should rule in your favor.
Tell a story. It is critical to tell a compelling and enjoyable story that has a beginning, a middle, and an end. The story should include vivid details and powerful language concerning, among other things, the characters in your story (e.g., the plaintiff and defendant), and the atmosphere within which the events in question occurred. A compelling story helps to personalize your client, enables the jury to visualize (and thus relate to) the relevant events, and enhances your statement’s emotional impact.
Use the Rule of Three. The best opening statements are well-organized and cohesive. One of the best ways to ensure that your opening statement is structured effectively is to use the Rule of Three. Simply put, the Rule of Three provides the jury with three distinct reasons that support a verdict in your favor – and maximizes the persuasive value of your statement. As one commentator explains:
We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there.
In essence, the Rule of Three “creates simplicity, aids recall and makes your job easier.”
Use demonstrative exhibits. During opening statements, demonstrative exhibits can often be a powerful tool to convey important facts and evidence to the jury in a well-structured, clear, and concise manner. Indeed, such exhibits focus the jury’s attention on the strongest facts and evidence supporting your argument, and can make your opening statement more persuasive and engaging, particularly for jurors that prefer visual images to enhance their understanding of the case.
Keep it simple and understandable. Opening statements should always be delivered using simple and easy-to-understand language. Thus, avoid fancy or esoteric words. Eliminate unnecessary legalese. And be sure to explain complex concepts in a clear and straightforward manner. Otherwise, you will likely lose the jury’s attention and fail to communicate your argument persuasively.
Be likeable, relatable, and credible. Likeability is an integral part of persuasive advocacy. Jurors (and judges) will be more inclined to rule in your favor or give you the benefit of the doubt if they like you. To enhance likeability, do not read your opening statement to the jury. Do not use notes. Instead, speak to the jurors in a conversational tone. Make eye contact and engage the jurors. Smile. Be friendly. Do not talk down to the jurors, attack your adversary, or speak in an overtly hostile manner. If the jurors like you, you will gain trust and credibility, both of which are essential to maximizing the persuasive value of your arguments.
Use non-verbal techniques. Non-verbal techniques are an essential part of effective advocacy. Such tecnhniques include, but are not limited to, avoiding speaking in a monotone and overly formalistic way. Instead, vary your tone and pace to emphasize important facts. Show authentic emotion. Use hand gestures and different facial expressions. Do not stand in one place for the entirety of your opening statement. And do not act in any manner that can be perceived as contrived and disingenuous. Effective non-verbal techniques contribute immeasurably to showing the jury that you are a genuine and relatable person -- and increase your openig statement's persuasive impact.
Confront unfavorable facts. Do not avoid facts that are unfavorable to your case. Instead, confront those facts in your opening statement and explain why such facts do not and should not affect the outcome or remedy you seek. If you fail to confront unfavorable facts, you can be certain that your adversary will, and when that happens, your credibility will be undermined substantially.
Avoid including unnecessary or irrelevant facts and explanations. Your opening statement should capture the jury’s attention from the first sentence and keep the jury’s attention until you conclude. To accomplish this, and to maximize persuasive impact, the opening statement must be interesting, engaging, and, at times, captivating. As such, avoid including unnecessary or irrelevant facts and explanations. Make sure that your statement is not too lengthy, unduly repetitive, ineffectively organized, or plain boring. Otherwise, you risk losing the jury’s attention – and your case.
End strong. The end of your opening statement is equally as important as the beginning. Your goal should be to reinforce the theme, maximize emotional impact, and highlight in a memorable way the strongest facts and evidence supporting your argument. Ask yourself, “what is the last and most important thing that I want the jurors to hear before they deliberate?” After all, a poor and unpersuasive ending can affect negatively the manner in which the jurors assess your arguments and, ultimately, diminish significantly your likelihood of success.
 Paul Luvera, “The Importance of a Trial Theme and the Rule of Three” (Jan. 16, 2011), available at: The immportance [sic] of a trial theme&the rule of three – Plaintiff Trial Lawyer Tips (internal citation omitted).
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 let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press.
- The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic. See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.
- The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now. The two arguments concerned funding for the border wall and the “Remain in Mexico” policy. See reports in Reuters, The Hill, and Bloomberg News.
Federal Appellate Court Opinions and News
The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.
The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance. The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.
State Appellate Court Opinions and News
- The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.
- Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”
February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)
Tuesday, February 9, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the second post in the series.
Do provide a consistent, coherent argument:
- Do research the applicable law thoroughly.
We have an obligation to the court and to our client to conduct thorough and exhaustive research. Rule 1.1 of the ABA Model Rules of Professional Conduct says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes an obligation to update our research. Failure to research adequately can cause harm to clients and embarrassment to counsel as demonstrated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).
- Do investigate the facts diligently.
A corollary to the duty to research the law thoroughly is a duty to thoroughly investigate the facts of the case. The Federal Rules of Civil Procedure state that when an attorney signs a pleading he or she is representing that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]”
- Do plan and organize your writing.
Outlining saves time. The more time we spend planning and outlining our writing, the less time we spend writing and rewriting. Outlining helps us organize our arguments, see gaps in our reasoning, and see things that can be eliminated. And consider as the first step, using a non-linear outline. This is a technique espoused by Bryan Garner and discussed in his book, Legal Writing in Plain English. To use this technique, the writer starts with a circle in the middle of the page that contains the issue or purpose of the writing. Off of that circle branch sub-issues, facts, authorities, and parts of what might become the final document. Here is an example from Legal Writing in Plain English:
The writer then uses this nonlinear outline to create a linear outline. Nonlinear outlining allows the writer to see how various facts and arguments might better fit before committing to a final, linear outline.
- Do make sure that any legal theory you present is consistent with applicable law.
ABA Model Rule of Professional Conduct 3.1 provides, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” So, as part of our writing process, and along with our duty to thoroughly research the law and investigate the facts, we must ensure our legal theories are consistent with applicable law.
- Do use persuasive authority.
I have to assume that in this instance the authors of the Dos and Don’ts meant, “Do use binding authority.” We all want to find that magic case that is on “all fours” with our case. In those rare instances when we do, we should cite it. Of course, we all know how infrequently that happens. When we can’t find a case that is binding, then we have to turn to persuasive authority. But not all persuasive authority is created equally. Think about what authority is likely to be more persuasive in your jurisdiction. Ask yourself questions such as, is the jurisdiction that produced the authority in the same geographic region or federal circuit as mine? Has the court relied on authority from this jurisdiction in other cases? How often have courts in other jurisdictions relief on this particular authority?
- Do state clearly what you are requesting in motions and briefs.
Ask for what you want and consider asking for alternative relief.
 Fed. R. Civ. P. 11(b)(3).
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Saturday, January 23, 2021
Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing. In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques: (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts. I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing. Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words: “Tonya Harding skates.”
Of course, I am always looking for new samples. Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter. In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts. See AWS Opp. to Parler's TRO Request. The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.
Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:
This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens.
Id. at 2. The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.” Id.
The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument. As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:
- Parler Conducts the “Absolute Minimum” of Content Moderation.
- Parler Enters an Agreement with AWS for Web Hosting Services.
- Parler Repeatedly Violates the Agreement.
- AWS Exercises Its Right to Suspend Parler’s Account.
AWS Opp. to Parler's TRO Request at 2-5.
Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision. It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader. While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story. For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives. The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’” Id. at 2-3. This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.
As appellate practitioners and writing teachers, we all benefit from reading each others’ work. I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing.
Saturday, January 16, 2021
It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.
Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong. Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.
The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.
The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed. Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen. Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants. And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.
However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed. Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.
Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months. In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.
After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.
Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”
 408 U.S. 238 (1972).
 543 U.S. 551 (2005).
 536 U.S. 304 (2002).
 572 U.S. 701 (2014).
 576 U.S. , 135 S. Ct. 2726 (Breyer, J., dissenting).
 See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog
 In re Gault, 387 U.S. 1 (1967) (internal citation omitted).
Saturday, January 2, 2021
Many of my younger students come from collegiate writing programs which do not use Oxford commas. These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more. This comma, known as a serial or Oxford comma, can change meaning. Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.
The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility. See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html. Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement. The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay. Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation. (For more laughs, really, I highly recommend one of my family’s favorite books: Lynne Truss, Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)
Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers. Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/. As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’” Id.
While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing. As Gurnett concludes: “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.” Id.
Last week, Pocket republished Chris Stokel-Walker’s article on serial commas. Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab. In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies. As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.” Id. He provides great examples to remind us about the need for precision.
First, Stokel-Walker cites the United States Tariff Act. As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs. However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.” Id. Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime. Id.
Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial. Id. In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act. Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.” Id. As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free. Id. Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown. Id. Unfortunately for Casement, the court applied the comma and ordered him executed.
Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.
Happy new year!
Saturday, December 26, 2020
Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.
Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.
Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.
The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…
Here is an example:
Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”
The defendant’s comments were defamatory for three reasons. First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.
After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.
Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.
Why is the Rule of Three so effective?
1. The Rule of Three simplifies your arguments
Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.
The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.
2. The Rule of Three organizes your arguments
The worst briefs are often those that go on…and on…and on…
The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.
The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.
3. The Rule of Three appeals to the audience’s cognition and psychology
Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?
Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.
The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere. In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.
Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.
Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.
Below are a few videos regarding the Rule of Three.
 Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)