Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Tuesday, October 15, 2019
Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.
Model Rule 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.
Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.
Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:
were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.
The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.
The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.
Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]
Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.
Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.
In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.
In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.
The court admonished:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:
While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.
Finally, appellate counsel must be mindful of Model Rule 8.2(a):
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .
Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).
Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.
The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:
Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
Id. at 148-49.
Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.
We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.
Saturday, October 12, 2019
United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons
On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.
Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
By way of background, Title VII provides in relevant part as follows:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.
II. Discrimination on the Basis of Sexual Orientation
On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.
On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).
III. Discrimination Against Transgendered Persons
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:
Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.
Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”
This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”
Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”
The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.
The Court will likely issue a decision in June 2020.
 42 U.S.C § 2000e-2.
 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).
 See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.
 Id. at p. 27:22-25.
 Id. at p. 25:17-18.
 Id. at p. 50:24-51:1 (emphasis added).
 Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.
Sunday, October 6, 2019
Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.” Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.” In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”
What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?
1. Justice Scalia Wrote Clearly and Concisely
Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.
2. Justice Scalia Wrote for the Audience
Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:
I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."
For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.
Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters
3. Justice Scalia Understood the Importance of Rewriting and Revising
Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:
I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."
Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:
What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."
Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.
4. Justice Scalia Understood that Great Writing Reflects Great Thinking
Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind." An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.
5. Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience
Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.
As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.
Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.” Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”
 David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer
 Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).
 Id. (emphasis in original).
 Id. (emphasis in original).
 Id. (emphasis added).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).
 Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.
Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).
Saturday, October 5, 2019
Recently, in a first-year writing class covering hierarchy of authority and our U.S. Court system, my students and I discussed membership in the bars of the United States Supreme Court and Circuit Courts of Appeals. The 1Ls did not know these courts have separate bars and admissions, and asked how and why practitioners might join. I shared the process for the Supreme Court and the Ninth Circuit (we’re in California) with them, and let them know they might even participate in a December group swearing-in at a Circuit Court one day. Many students said they would see these memberships as prestigious and impressive.
The class discussion led me to survey my local appellate pals informally. While a few were jaded about the value of listing these bar admissions in their firm bios or on resumes, many of our appellate community practitioners use memberships in these bars as indicia of appellate experience, especially if they do not have a state appellate specialization to list. A search of Twitter reveals attorneys bragging about their federal licenses, and one friend told me she added all of her federal bar admissions to her LinkedIn profile when she let her state appellate specialization expire. Another colleague told me partners asked about these admissions when he wanted to move from litigation to an appellate department at a large law firm. While this is anecdotal evidence, it supports the value in highlighting any federal bar memberships, especially appellate court bar memberships.
Therefore, the next time you update a professional profile, you should consider adding any federal bar admissions you have. In fact, one law school career development office expressly suggests doing so. https://pennstatelaw.psu.edu/career-planning-and-development/alumni-career-services/adding-bar-admission-your-resume.
Curious about applying to a federal bar? Check out the court’s website. If you do not have an account for online filing, you will need one to practice at the Circuit Court (and sometimes you need to be a member first to create these accounts), so learn about PACER and CM/ECF, and start your registration process. Most of the Circuits still require anyone not newly admitted to a state bar to have either a sponsor or a clerk certification, and to also obtain a certificate of good standing from their state bar. E.g., https://www.ca9.uscourts.gov/content/atty_instructions.php; http://www.ca2.uscourts.gov/clerk/attorneys/admission_instructions.html. Moreover, while the forms are now available online through PACER, the $220-230 fee required by the courts is not de minimis. These are even more reasons to brag about your membership once you join. And, if you want the details for each federal court, author and general counsel John Okray has written an entire book on admission to the various federal district and circuit courts, U.S. Federal Courts: Attorney Admission Requirements: 2011 Edition (2nd Revised Ed. Lawyerup Press 2010).
Please feel free to comment about the memberships you list on your profiles and bios. I’ll be sure to share comments with my students. Thanks!
Tuesday, October 1, 2019
Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.
Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished. Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.
But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.
Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.
Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.
In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.
 “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).
Saturday, September 21, 2019
Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated. According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it." The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time." https://constitution.congress.gov/about/
The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers. The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional.
Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited. Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only. On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.
In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained: “Unfortunately, the public facing version is not . . . lucid.” The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen." The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public. Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students." https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.
Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated. While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested. On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”
Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions. Moreover, the pages are integrated nicely with the Library’s other resources. For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.
For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource. Hopefully, the continued updates will be quick and helpful as well. Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.
Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Thursday, August 29, 2019
I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American's Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates. And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging. And while the focus was on competition judges, the psychology applies in daily practice. For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender. These same judges practice law in our communities and serve as judges in our courts.
I want to ask how we can combat those biases, but I don't think that is the answer. Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance. But in certain circumstances standing up against indignities is absolutely required.
Unfortunately, we are raised in a civilized society. We don't expect anyone to be blatantly biased, and we are shocked when it happens. If we haven't thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock. As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in. I talk to my students about bias and we discuss the how and when.
Where do you draw the line? Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit bias towards you, your client, or your team? Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room?
Tuesday, August 20, 2019
There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.
But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.
First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.
Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.
Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.
And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.
Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.
Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Tuesday, August 6, 2019
I am a big proponent of oral argument. It can, and should, make a difference in complicated cases. No matter how tight our writing is, there is something about the give-and-take of oral argument with a well-prepared panel that refines arguments in a way that is difficult to match. But we also have to be very careful, or the words we say can live on in ways we did not expect.
While I was catching up on my reading following summer vacation with my family (a big thank you to my friend, John Browning, for covering with his excellent guest post while I was gone), I dove into the recent analysis of the Plain Error Doctrine in Justice Oldham's concurring opinion in U.S. v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019). While I found his analysis of the origins and misadventures of the doctrine since the 1800s to be fascinating and recommended reading for anyone who deals with the doctrine or the topic of waiver versus forfeiture of error, what caught my attention most was his reference to a comment by the Federal Public Defender's Office made during oral argument in a different matter. Without going into detail, Justice Oldham used that comment to raise what he considers to be an anomaly in the law.
We already know that some Supreme Court Justices are prone to quoting oral argument in the opinions that they write in the same matter. According to a 2008 analysis, Justice Ginsberg cites the transcript in almost every opinion she writes, with Chief Justice Roberts following a bit behind at one citation to the transcript every other authored opinion. See Frederick Liu, Citing the Transcript of Oral Argument: Which Justices Do It and Why, 118 Yale L.J. Pocket Part 32 (2008). The Justices use the transcript for three primary reasons: (1) to describe an advocate's affirmative position; (2) to record an advocate's concession; and (3) to note an advocate's representation of the record or facts. Being quoted is not necessarily a good thing -- Justices were almost twice as likely to cite statements made by an advocate whose side they opposed than one they supported.
We already know, then, that what we say at oral argument in a given case may be used in the opinion that follows. The oral argument does seem to make a difference, at least to justices on the margins, and the right argument can still sometimes win the day. Of course, the converse is true. Loose lips can sink ships. The impact of the statements made at oral argument is the primary reason I urge advocates to "moot" their appeals.
But what struck me about Justice Oldham's use of the transcript was that he was drawing from other cases. As more courts record oral argument and transcripts become more widely available and searchable, the idea of having my words used in an opinion months or years later is a bit sobering. And it drives home the idea that these transcripts are another important research tool that is easy to overlook.
Don't forget that even our spoken words live longer now than ever. We need to tap into that as a source of research, and be careful with what we say for both the cases we are currently handling and the ones we may handle in the future.
(Image information: WWII era poster from the U.S. National Archives and Records Administration).
Wednesday, July 31, 2019
I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.
Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.
These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.
Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.
Tuesday, July 23, 2019
This is a guest post by John Browning. John is a partner in a Dallas law firm, where he handles civil litigation and appeals in state and federal courts. He is the author of multiple books and many articles on social media and the law.
In our increasingly wired world in which over 82% of adult Americans maintain at least one social networking profile—and in which Facebook boasts over 2.2 billion users and Twitter processes a billion tweets every 48 hours—the potential for using social media in ways that violate attorneys’ ethical restrictions looms large. Lawyers across all practice areas have tweeted, Instagrammed, posted, and Snapchatted their way into disciplinary proceedings, judicially-imposed sanctions, and other forms of ethical hot water. But in the comparatively staid, even monastic confines of the appellate world, can appellate lawyers fall prey to the siren song of social media?
The answer is a resounding, if somewhat surprising, “yes.” Appellate lawyers, clerks and other court staffers, and even judges have seen their online activities result in public embarrassment, job loss, and disciplinary action. And while reviewing the record in an underlying case and engaging in legal research may not be typical paths to social media misuse, breaching confidentiality by discussing certain aspects of a case on social media platforms is a very real danger.
Let’s begin with a cautionary tale. Sarah Peterson Herr was a newly-minted graduate of Washburn University School of Law in Kansas in 2010 when she started her first job at the Kansas Court of Appeals as a judicial assistant to Judge Christel Marquardt. About a year later, she was promoted to research attorney, the position she held on November 15, 2012. When she reported for work that day, Herr noticed that there was an unusual amount of security. She soon learned the reason why: that day, the Kansas Supreme Court would host an attorney disciplinary proceeding against former Kansas Attorney General Phill Kline. While serving as attorney general, Kline attracted controversy over the use of his office to investigate and prosecute abortion providers such as Planned Parenthood.
Herr decided to view the oral arguments using the computer in her office, where she also proceeded to “live Tweet” the proceedings, sending out a series of tweets that included the following:
- “You can watch that naughty naughty boy, Mr. Kilein [sic], live! live.kscourts.org/live.php”
- “Why is Phil Klein [sic] smiling? There is nothing to smile about douchebag.”
- “ARE YOU FREAKING KIDDING ME. WHERE ARE THE VICTIMS? ALL THE PEOPLE WITH THE RECORDS WHO WERE STOLEN.”
- “You don’t think a sealed document is meant to be confidential. BURN.”
- “I predict that he will be disbarred for a period not less than 7 years.”
- “I might be a little feisty today.”
With that last note, about whether or not she might be too “feisty,” Herr may have made her most salient observation. While she did not associate her tweets with her job, at least some of Herr’s Twitter followers were aware of her position with the Court of Appeals, and now everyone also knew her opinion of Phill Kline—including her accusation that Kline’s “witch hunt” helped lead to a doctor’s murder. A journalist with the Associated Press learned of Herr’s tweets and contacted the Kansas Judicial Center’s public information officer the next day for comment, and shortly thereafter Herr was placed on leave and, falling on her sword and issuing an apology:
I didn’t stop to think that in addition to communicating with a few of my friends on Twitter I was also communicating with the public at large, which was not appropriate for someone who works for the court system . . . I apologize that because the comments were made on Twitter—and thus public—that they were perceived as a reflection on the Kansas courts.
The following Monday, Herr was terminated. Within days, she was referred to the Kansas bar’s disciplinary body by the clerk of the appellate courts, and in January 2014, Herr was found to have violated Kansas Rules of Professional Conduct 8.4(c) (about engaging in deceit or misrepresentation) and 8.4(e) (about implying on ability to influence a government agency). She received an informal admonition and became a cautionary tale for the Digital Age.
Even appellate judges can misstep or overshare on social media platforms. In November 2017, Ohio Supreme Court Justice Bill O’Neill was also a Democratic candidate for governor of Ohio. On the national landscape, U.S. Senator Al Franken of Minnesota was embroiled in a highly publicized scandal involving his alleged sexual misconduct with radio host Leeann Tweeden during a 2006 USO tour. Inexplicably, Justice O’Neill felt compelled to weigh in on what he described as the “national feeding frenzy about sexual indiscretions” with a “too much information” Facebook post about his own sexual history. Saying it was “time to speak up on behalf of all heterosexual males” and expressing that he would “save my opponents some research time,” Justice O’Neill posted the following:
In the last fifty years I was sexually intimate with approximately 50 very attractive females. It ranged from a gorgeous personal secretary to Senator Bob Taft (senior) who was my first true love and we made passionate love in the hayloft at her parents barn in Gallipolis and ended with a drop dead gorgeous red head who was a senior advisor to Peter Lewis at Progressive Insurance in Cleveland.
O’Neill’s Facebook post led to an immediate backlash, including from his own party. O’Neill had already been widely criticized for his refusal to resign from the Supreme Court while openly proclaiming his candidacy for governor. Ohio Chief Justice Maureen O’Connor stated “No words can convey my shock. This gross disrespect for women shakes the public’s confidence in the integrity of the judiciary.” Justice O’Neill deleted his post but posted new comments on Facebook, at first lambasting his critics. O’Neill eventually posted an apology, but the damage was already done.
Appellate lawyers and judges should not only be aware of the ethical risks presented by their own misuse of social media, they also have to be mindful of what their lawyer and non-lawyer staff might be posting. Appellate courts, including the Supreme Court of Texas, have begun implementing social media policies for that reason. Courts’ internal handling of matters before them are confidential, and courts must balance the First Amendment freedoms of current and prospective court employees with the courts’ legitimate interest in protecting the integrity and efficiency of their work. The online activities of court employees can implicate or even threaten multiple ethical obligations, including the duty to maintain confidentiality, the duty to avoid conduct that would jeopardize the integrity and independence of the judiciary, and the duty to avoid any conduct that would cause a reasonable person to question the impartiality of the court.
One current lawsuit illustrates the dangers of court staffers’ social media activity when they communicate in such as way as to make their affiliation with an appellate court known. In May 2018, Olga Zuniga—a former secretary to Court of Criminal Appeals Judge Kevin Yeary—filed a federal lawsuit complaining that she had been fired from her job because of Facebook posts in which she criticized President Trump and other Republican politicians while praising Democratic politicians. According to the lawsuit, Zuniga had worked as a career legal secretary in state government, including at the Texas Attorney General’s Office, and had been an executive assistant at the Court of Criminal Appeals since 2003. In November 2016, Zuniga alleges Judge Yeary “counseled” her about her Facebook posts critical of Republican figures. Zuniga maintains that Judge Yeary’s periodic reviews of her Facebook activity continued throughout 2017, with Judge Yeary expressing “disapproval” of her politically-charged posts. Ultimately, according to Zuniga’s lawsuit, after again disapproving of posts Zuniga made in September 2017 critical of stances taken by both Governor Greg Abbott and Lt. Governor Dan Patrick on immigration-related issues, Judge Yeary terminated her on October 11, 2017.
Judge Yeary and the Court of Criminal Appeals responded with two motions to dismiss, filed on July 30, 2018 and March 28, 2019 respectively. In both motions, among other arguments, the defense pointed out numerous examples of Zuniga’s Facebook posts associating herself with the Court, its activities, and its personnel, as well as posts containing lewd content, to demonstrate her use of Facebook while at work on her official state computer. The motions also argued that dismissal was warranted based on the fact that, as someone employed in a judge’s chambers, Ms. Zuniga was an employee with access to confidential information, and one whose job functions required trust and loyalty. Moreover, Ms. Zuniga’s online comments suggesting that partisan elected judges could not be trusted if they belonged to a certain political party undermined the Court’s interest in maintaining authority and credibility. In addition, the motions to dismiss also argued that, as Zuniga herself had admitted, there were other factors leading to her termination, such as attendance problems, inaccurate leave reporting, the failure to complete assignments, and other job performance issues unrelated to any dispute over plaintiff’s political views. The court has not yet ruled on either of these dismissal motions.
In today’s digital environment, social media allows commentators incredible reach with the blinding speed of a search engine. Consequently, appellate attorneys—like their counterparts in other practice areas—need to be mindful of that when they express opinions online or on social media platforms, even when they think they are acting in a purely personal capacity. Lawyers face heightened public and ethical scrutiny when they make statements on social media, so if you wouldn’t put it in a letter or pleading, you probably shouldn’t post it on Facebook or tweet about it.
Tuesday, July 16, 2019
Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy.
When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law.
In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective.
It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion.
Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.
Objective Statement of the Law (First Draft)
[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]
Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”
Persuasive Statement of the Law (Revised Version of First Draft)
[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]
The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.
Checklist of Edits Transforming Objective Into Persuasive
- We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
- We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
- We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
- We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
- In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
- We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.
Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at email@example.com.
Monday, July 15, 2019
This is a guest post by Raffi Melkonian, a partner at Wright Close & Barger in Houston, Texas.
The day after I gave my first (and only!) United States Supreme Court argument, I put up a thread on Twitter (where I post as @RMFifthCircuit) about my oral argument preparation. It was well-received, and many people encouraged me to tease it out a little into a blog post or article. This is my first attempt to do exactly that. A caveat: these thoughts are for people like me. That is, lawyers who don’t normally practice in the rarified air of the Supreme Court. It’s advice for the first-time tourist, not the experienced traveler. Maybe it’s even good advice for the new lawyer preparing for their first appellate argument. So if your name is Paul Clement or Neal Katyal, stop reading!
One more thing. This post is not about briefing. Yes, it’s conventional wisdom that the merits brief is the most important part of the Supreme Court presentation. I think that’s true. And yet, it’s a complicated topic that goes far beyond the scope of this post.
Anyway, oral argument is the moment many first-time advocates focus on, and with good reason. It’s the one time you’re alone with the nine justices of the Supreme Court. No one can help you. And, the stakes for your client are high. Not many cases are won at argument, to be sure, but some are lost. In Justice Ginsburg’s words, “I have seen potential winners become losers in whole or in part because of … oral argument.” But the advocate too has some skin in the game. As I know from scrutinizing arguments on #AppellateTwitter, a lawyer’s missteps at oral argument are judged harshly by the commentariat. You don’t ever want to be that guy.
So what then? The answer is intense and unrelenting preparation. Listed below are some of the strategies I used to get ready. But remember, excellent lawyers prepare differently. What may work for me won’t work for you, and the reverse. So, as they say on the Internet, Your Mileage May Vary.
- My grandmother, like many Catholics, would read a small prayer book every morning, a daily devotional. It seemed to me that I needed to know all of the briefs as intimately as she knew her prayers, so I had all the pleadings set out in a binder – our briefs, their briefs, and the various amici – and I read them every morning. I took notes, of course, but mainly the point was to read them again, and again, and again.
- David Frederick, the famous Supreme Court lawyer, recommends in his book on oral argument that you spend much of your time thinking of questions the Court could ask you. That’s part of my normal oral argument preparation, and I took his advice doubly to heart for SCOTUS. I spent hours thinking of as many questions as possible. I scrawled some of these questions on note cards, some I typed. No question was too benign, and none too difficult. The hardest work was writing out extensive answers to each question.
- I wrote a very short outline of what I wanted to say, and practiced in front of a camera at a podium (well, a cardboard box) many times. A picture I posted on twitter of that effort was even turned into a meme by the incredibly creative @AliceLfc4, a court clerk in Florida (here’s proof!). Every 20 seconds or so, I’d pick a question from my pile and ask it to myself, and then answer, and then practice pivoting back to what I was trying to say. This effort required many edits to my note card answers. Some of my answers were bad, others too long. Over time, they became tighter, more focused, pithy. Well, as pithy as I get, anyway.
- Ultimately, I became convinced that there were only six thematic sentences I needed to say, no matter what. I wrote these on a notecard and practiced saying them during my note card answers. The goal was to say each of the six at least once in any practice session. I got five of them out during the actual oral argument.
- I did three moot courts in total, beginning about two weeks before the argument. I spent two days before the moot preparing for the argument, and then the entire day after the moot incorporating the feedback. Needless to say, I am ever grateful to the teams at Stanford, Public Citizen, and the Georgetown University Law Center Supreme Court Institute that mooted me.
- Finally, consider the physical space. I hadn’t been to the Supreme Court since college, and so I picked an oral argument day earlier in the week to observe. This turned out to be a good idea. The space is both overwhelming and tight, and knowing what it feels like helped put me at ease when I went for real. Plus, I had many guests with me, none of whom had been to the Court either. Being able to give them real world advice about the process of getting in and to the courtroom (though really, you can just read Jaime Santos’s go-to thread) was invaluable.
An article I read before the argument helpfully advised that most advocates do not faint at the Supreme Court’s podium. At the time, I felt that was rather macabre. But with the right preparation, a Supreme Court argument can be enjoyed rather than endured. I know I enjoyed mine.
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Friday, July 5, 2019
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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.
Supreme Court Opinions and News:
The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies. Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage. Gundy is such a defendant, did not register, and was charged and convicted as a result. He challenged Congress’ delegation as impermissible. As the article notes, the Court has long allowed Congress broad authority to make such delegations. In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board. The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate. The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.
FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy. The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case. Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.
The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is." He's now the longest-serving member of the Court and the senior associate Justice. On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty.
Federal Appellate Court Opinions and News:
In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website. The case was Oberdorf v. Amazon.com. More from the CA3blog.
State Appellate Court Opinions and News:
The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt. The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents. The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder. In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm. More here.
Practice Tips and Pointers:
Tuesday, July 2, 2019
The record has been compiled. Your research is complete. You stare at notes you scribbled while brainstorming. Now it’s time to write the brief. Where do you start?
Honestly, I never thought much about how to start writing briefs while I was in practice. I tackled each brief from the beginning with the Caption Page. I’d skip over the Table of Contents and Table of Authorities. Then, I wrote each section of the brief in the order it appeared, saving the Summary of Argument until after I finished the Argument section. Finally, I would compile the Table of Contents, the Table of Authorities, and the Certificate of Service. It never occurred to me that there may be a different way.
When I teach brief writing, I encourage students to start writing the most difficult section, the Argument, first. If a student is struggling with writer’s block, I will recommend she begin by writing a few of the “easier” sections, like the Caption Page, Conclusion, and Statement of Jurisdiction, before writing the Argument. These “easier” sections are independent of the arguments in the brief and can be written any time. Ideally, I think writing the Argument first is beneficial for several reasons.
First, the Argument section is arguably the most important part of the brief. I encourage students to spend the bulk of their time developing their arguments and writing them when they are the freshest. When I grade the brief, I spend most of my time in the Argument and I weigh this section the most heavily. My grading practice corresponds to my focus when I worked as an appellate-court law clerk. When I read the parties’ briefs, I always started with the Argument section. I spent most of my brief-reading time engaged with the parties’ arguments.
Second, writing the Argument can take a long time. Even if you begin with a detailed outline of points, the act of writing encourages deeper thinking on the issues. You may uncover an argument you hadn’t considered when you compiled your outline. As you write, you may see gaps in your research and may need to stop writing to find additional authority. Your theory or approach to the case may change as you write. You need time for the arguments to take shape. If you start with the Argument, you give yourself that time.
Third, developing your arguments first may lead to a better overall brief and save you time. The Argument section will likely influence how you write some of the other sections of the brief. You can unify your brief around a common theme, if you understand what your theme is after you have developed your arguments. For example, you may not realize what facts are truly important to your case until you have explored all your arguments. Writing the Argument section before writing the Statement of Facts helps you distinguish between the legally-relevant facts, which should be the foundation of your Statement of Facts, and the irrelevant facts, which should be left out. If you write the Statement of the Issues after you write the Argument section, you can incorporate your theory of the case or some persuasive facts from your arguments. Also, it is easy to highlight your key points in the Summary of Argument if you have fully formed them in your Argument first.
If you write the Statement of Facts, the Statement of the Issues, and the Summary of Argument before writing the Argument, you may have to spend time revising these sections to match the Argument section. Writing the Argument section first, and using it to guide how you write the other sections of your brief, can result in a better overall document written in less time.
Tuesday, June 25, 2019
In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.
1. Plan Ahead and Be Respectful of your Panel's Time.
Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.
2. Establish a Format for the Session.
The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.
You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.
If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.
In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.
Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.
3. Accurately Emulate the Oral Argument.
Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”
If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.
4. Prepare Yourself and Your Panel.
When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.
Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.
Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.
5. Enjoy the Conversation
The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.
(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)
Monday, June 17, 2019
While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship. A state or federal appellate clerkship is an excellent stepping stone to an appellate career. But how do you secure an appellate clerkship? Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships.
(1) Get good grades: Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important. If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class. Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.
(2) Be on a journal: For many judges it is important for applicants to have journal experience. Much of the work that appellate law clerks do mirrors journal work. For some judges, high level moot court experience could replace journal experience.
(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships. So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor. And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.
(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse. You can see what the judges do, and hopefully end the experience with a great recommendation. Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society. Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.
(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town. Find those judges, apply to them, and mention the connection in your cover letter.
(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship. That is no longer the case. Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship. If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship. I also know of a student who went from the state supreme court to the federal district court. The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.
(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive. I have met many a state court judge who is better equipped to do this than some federal judges. So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.
(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience. Or, try working for a judge your first summer out of law school. That experience should help you know a little bit what a clerkship would be like.
Good luck to all of the students applying for clerkships right now!