Appellate Advocacy Blog

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

Saturday, September 26, 2020

A Fairy Tale Brief Teaches Clarity and Form

Once again, we find ourselves at the end of a week full of heavy news.  While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter.  If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal:  https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf

In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear.  See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition).  The sample also helps litigants include all opening brief sections required by the California Rules of Court.

For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument.  In two sentences, the sample summarizes the parties’ status and introduces the important facts: 

The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.) 

The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs. 

Goldilocks SOC

The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.”  In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener.  For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’  (RT 25-26.)”   Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.

As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action: 


Goldilocks arg

While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format.  Finally, the brief concludes briefly, as all appellate writing should.  Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief:  “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”

Hopefully, the fairy tale context of the Court’s sample will make you smile.  But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format.  The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.

September 26, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Humor, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, September 20, 2020

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College: An Analysis of the Future of Affirmative Action

I.    Background

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the plaintiff, an organization that opposes affirmative action, filed suit against Harvard University in the United States District Court for the District of Massachusetts, alleging that Harvard’s affirmative action program unconstitutionally discriminated against Asian-American applicants.[1] In September 2019, U.S. District Court Judge Allison Burroughs rejected the Plaintiff’s claim, holding that Harvard’s affirmative action program neither engaged in racial balancing (quotas) nor placed an undue emphasis on an applicant’s race in the admissions process.[2] Accordingly, although Harvard considered race as part of its holistic admissions process, its process did not discriminate impermissibly based on race and thus passed constitutional muster.[3] Subsequently, Students for Fair Admissions, Inc. appealed to the First Circuit Court of Appeals, arguing that Harvard’s admissions process imposed a de facto “racial penalty” on Asian-American applicants.

On September 16, 2020, the First Circuit heard oral arguments and the three-member panel appeared skeptical of the appellant’s arguments.[4]  Judge Sandra Lynch, for example, stated that “[y]our argument seems to come down to ‘Harvard must admit based only on academic rating and may not consider anything else,’” an argument that would contravene the United States Supreme Court’s jurisprudence holding that race may be considered as part of a holistic admissions process.[5] The oral argument suggests that the First Circuit is likely to uphold the district court’s decision, but that will almost certainly not be the end of the story. The Supreme Court will likely grant certiorari to consider the permissible contours of affirmative action programs and the extent to which colleges and universities may consider race in the admissions process.

II.    Analysis of Affirmative Action Jurisprudence

The United States Supreme Court’s jurisprudence regarding affirmative action provides a reasonably justifiable basis upon which to uphold the constitutionality of affirmative action programs.

To begin with, in Regents of the University of California v. Bakke, the Court held that the value in promoting educational diversity was sufficiently compelling to justify the use of race in the admissions process.[6] Indeed, few could gainsay that diversity confers a substantial benefit upon universities, students, and the community. A diverse student body exposes students to various perspectives, enables students to interact with others from different backgrounds and experiences, and facilitates an awareness of the obstacles and adversity that many minorities have overcome. As Judge Burroughs emphasized, “students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents,” and, as such, “race-conscious admissions programs have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning.”[7]

Importantly, however, the Court in Bakke emphasized – and rightly so – that a university’s admissions process must be narrowly tailored to ensure a holistic and individualized consideration of every applicant, such that race cannot the sole or even predominant factor in the admissions process.[8] And in Gratz v. Bollinger, the Court reaffirmed this principle, invalidating the University of Michigan’s undergraduate admissions policy because it automatically awarded twenty points toward admission for minority applicants (100 points were required for admission, with a perfect score on the SAT earning twelve points).[9] This approach permitted precisely what Bakke prohibited – an excessive emphasis on race in the admissions process.

Conversely, in Grutter v. Bollinger, the Court upheld the University of Michigan Law School’s affirmative action program, holding that, although the law school’s admissions process favored underrepresented minority groups, the admissions process was sufficiently holistic to ensure an individualized consideration of every applicant.[10] Additionally, the Court held that the law school’s objective of obtaining a “critical mass” of minority students was sufficiently tailored to further the interest in achieving a diverse student body.[11] The “critical mass” rationale makes sense; one could hardly argue that the benefits of diversity are achieved if the percentage of diverse students are so minuscule

Finally, in Fisher v. University of Texas, the Court upheld the University of Texas’s affirmative action program, although its decision brought uncertainty, rather than clarity, to the Court’s affirmative action jurisprudence.[12] In Fisher, the University of Texas automatically admitted all high school students throughout Texas who graduated in the top 10% of their high school class.[13] Although this policy created substantial diversity among the University of Texas’s incoming classes, the university nonetheless included race as a factor in its holistic admissions process, which was reserved for students who did not graduate in the top 10% of their class.[14] A white applicant who had been denied admission through the holistic process sued the University of Texas, arguing in part that, because the university already achieved substantial diversity through the top 10% program, the use of race in its holistic process was not sufficiently narrowly tailored.[15]

The Court rejected this argument, holding that the university’s rationale for its diversity-related goals, which included the elimination of stereotypes, cross-racial understanding, and preparing students for a diverse workforce, were sufficiently measurable to enable judicial review, and that the university’s determination that the top 10% program was insufficient to ensure adequate diversity was entitled to substantial deference.[16] On this basis, the Court upheld the university’s affirmative action program, although the Court’s decision, which failed to apply strict scrutiny (as had been the case in Bakke, Gratz, and Grutter), lacked a meaningful analysis of whether the university’s admissions process was appropriately tailored to ensure an individualized consideration of applicants outside of the top 10% program.[17] Simply put, Fisher muddied the waters and brought confusion, rather than clarity, to the Court’s affirmative action jurisprudence, particularly regarding the legal standards governing the constitutional of affirmative action policies.

Notwithstanding, the Court’s decisions have established several broad principles that provide some guidance regarding the constitutionality of affirmative action policies. First, the interest in achieving a diverse student is undoubtedly compelling, particularly given that it exposes students to different perspectives, facilitates relationships with students of various backgrounds, and, as Judge Burroughs stated, this creates a “diverse atmosphere that fosters learning.”[18] Second, the requirement that universities assess applicants holistically – and thus ensure an individualized consideration of every applicant – at least theoretically ensures that race will not be a predominant or, worse, deciding factor in admissions decisions. Third, it makes sense that courts would be reluctant to interfere in the internal policymaking decisions of universities absent evidence, as in Gratz, that admissions committees are preferencing minority applicants to such as degree  (and thus discriminating against applicants of other races) that renders race, at least in some circumstances, dispositive in admissions decisions. Perhaps for that reason, as Justice Anthony Kennedy stated in Fisher v. University of Texas, universities are entitled to substantial deference in designing affirmative action program 

Opponents of affirmative action, however, offer several arguments that are worthy of consideration. First, the consideration of race to any degree whatsoever is arguably contrary to the fundamental guarantee of equality and equal protection under the law. This argument, however, ignores the fact that for most of this country’s history, universities did consider affirmative action in the admissions process – to the detriment of minority applicants, particularly African Americans. Thus, the notion that we should embrace a color-blind admissions process – in the wake of, for example, segregation and Jim Crow – is untenable and unfair.

Second, opponents may assert the argument that the Court’s attempt to ensure a holistic and individualized admissions process is unrealistic because universities’ contention that race is only one factor in the admissions process is disingenuous. Put simply, in many instances, race is the sole determining factor in whether an applicant is admitted.  To assess this argument, scholars would need to examine the grade-point averages and SAT (or ACT) scores of applicants admitted under universities’ affirmative action programs. If the scores of admitted minority applicants were substantially (not marginally) lower than those of non-minority applicants, one could reasonably argue that race was a predominant, if not determinative, factor. If that were indeed the case, then scholars must examine the percentage of minority applicants that were admitted with lower grade point averages and SAT (or ACT) scores compared to non-minority applicants with similar scores. If such analysis revealed a substantial disparity in the percentage of admitted minority and non-minority applicants, one could make a prima facie case that race was the deciding factor. That would lead to the conclusion that the Court in Bakker refused to countenance: the excessive emphasis on race in the admissions process.

Third, some scholars have argued that affirmative action policies harm minority applicants by admitting such applicants to colleges where they will struggle to succeed academically.[19] Without detailed admissions data from universities and data regarding the academic performance and employment outcomes of minority students, this argument is difficult to assess.

What is certain, however, is that the Court’s decisions, particularly after Fisher, has failed to delineate a workable line between policies that will survive constitutional scrutiny and those that will not. As a result, the law concerning affirmative action remains unstable and unpredictable, resulting in a case-by-case approach that provides insufficient guidance to university administrators. That should change.

III.    Conclusion – The Future of Affirmative Action

Affirmative action policies at universities are likely here to stay for the foreseeable future, and for good reason. Diversity enhances the educational experience for all students and provides underrepresented groups with access to educational opportunities [20]that, for too long, have been wrongfully denied. But affirmative action alone is not sufficient. And there is some merit, based on relevant data, that affirmative action hurts the very groups that there are designed to benefit.[21]

Rather, legislators, policymakers, and scholars should address the root cause of the problem, namely, educational inequality at the grade and high school levels, which results from poverty and affects children of all races. Indeed, after the Supreme Court’s decision in San Antonio School District v. Rodriguez, where the Court held that a school district’s financing system could be based on local property taxes, educational inequality was an inevitable result.  Specifically, the quality of education (and educational resources) in grade and high schools differed substantially, if not alarmingly, depending on whether a community was affluent or poor. For example, the difference between an education at Beverly Hills High School and an education at Crenshaw High School in Los Angeles was like the difference between night and day.

It should come as no surprise, therefore, that students at Crenshaw High School, or other high schools in impoverished communities, lacked many educational resources, such as access to academic support services, extracurricular activities, and SAT or ACT tutoring services. It should also come as no surprise that the standardized test scores of applicants from impoverished communities, which are disproportionately minority, are substantially lower than those of students in affluent communities, which are disproportionately white.[22]  The upshot is that students from impoverished communities, regardless of race, are less prepared for the rigors of university academics than their more affluent peers.

Consequently, although affirmative action policies rightfully increase the diversity of student bodies and enhance access to education, they do not address the fact that students from disadvantaged or marginalized backgrounds often perform poorly in college, have higher dropout rates, and substandard employment outcomes.[23]

Given this reality, affirmative action policies, however well-intentioned, and as Sanders’ mismatch theory suggests, are not sufficient. Rather, universities should adopt and implement mandatory ‘bridge’ programs and mentorship programs for all students, regardless of race, who reside in poor communities and whose standardized test scores and grade point averages suggest that they may struggle to succeed academically. The goal would be to provide students from non-traditional or marginalized backgrounds with the preparation and support necessary to maximize their likelihood of achieving success in college, employment, and life. Such programs could occur in the summer before a student’s freshman year, be four or eight weeks in length, and focus on skills such as writing, analytical thinking skills, and life skills to facilitate the adjustment to university life. Additionally, each student who is considered “at risk” should be provided with faculty and student mentors who provide support to each student throughout the entirety of their undergraduate career.

Put simply, the debate regarding affirmative action misses the point. To truly benefit the groups that affirmative action targets, universities should focus on race and poverty as the driving forces undergirding educational inequality. In so doing, universities should implement programs that help to bridge the preparation and achievement gap, and that maximize the likelihood that students from traditionally disadvantaged backgrounds will succeed academically and, ultimately, prosper economically.

***

*This article was co-authored with Daria Brown, an undergraduate student and aspiring law student at Georgia College and State University in Milledgeville, Georgia. Daria edited and drafted a portion of the article, and provided helpful insights regarding affirmative action policy.

[1] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf

[2] See id.

[3] Harvard Gazette, Judge Upholds Harvard’s Admissions Policy (Oct. 1, 2019), available at: https://news.harvard.edu/gazette/story/2020/09/appeals-court-panel-hears-oral-arguments-in-harvard-admissions-case/

[4] See id.

[5] Id.

[6] 438 U.S. 265 (1978).

[7] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[8] See Bakke, 438 U.S. 265.

[9] 539 U.S. 244 (2003).

[10] 539 U.S. 306.

[11]  See id.

[12] 136 S. Ct. 2198 (2016).

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See id.

[18] See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.

[19] See, e.g., Richard Sander and Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012).

[20] 411 U.S. 1 (1973).

[21] See Richard Sander and Stuart Taylor, Jr., The Painful Truth About Affirmative Action: Why Racial Preferences in College Admissions Hurt Minority Students – and Shroud the Education System in Dishonesty, (Oct. 2, 2012), available at: https://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/; Elizabeth Slattery, How Affirmative Action At Colleges Helps Minority Students (Dec. 2, 2015), available at: https://www.heritage.org/courts/commentary/how-affirmative-action-colleges-hurts-minority-students

[22]  See Abigail Hess, Rich Students Get Better SAT Scores – Here’s Why (Oct. 3, 2019), available at:  https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-heres-why.html

[23] See Slattery, supra note 21.

September 20, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession | Permalink | Comments (0)

Saturday, September 12, 2020

Grammar School Passive Voice Rules Still Matter

Every year, I ask my students to read a variety of articles on the use of language, especially passive voice.  For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was.  See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).

This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless.  Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less.  Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.”  But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons. 

As Rockmore explains, we stress good writing for clarity.  She notes:  “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.”  Rockmore, How Texas Teaches History.  Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.”  Id.  For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id.  Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.”  Id.  As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers.  Id.

As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please).  We should all do the same with our own appellate documents, even when our use of passive is less insidious.  We’ll save words for more content, and we’ll communicate more clearly.

Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.  

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

Friday, September 11, 2020

Appellate Advocacy Blog Weekly Roundup Friday, September 11, 2020

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

US Supreme Court Opinions and News

As the Court prepares to begin the 2020-2021 term next month, various groups and scholars are previewing the major cases expected to be heard:

  • Georgetown Law’s Supreme Court Institute will hold its annual press briefing on the major cases to be heard. The event will be held remotely on September 22 and will be available to the public via livestream on the Georgetown Law Facebook page.

  • The Pacific Legal Foundation and National Review Institute will preview high-profile cases. The event will be held via webinar on October 2, register here.

  • Amy Howe of Howe on the Court, is looking at the interesting petitions set to be reviewed during the September 29 “long conference” where the Court meets privately to consider pending petitions. The first of the series is here.

Federal Appellate Court Opinions and News

The Eleventh Circuit overturned a lower court ruling concerning the 2018 Florida Constitutional amendment that granted the right to vote to former felons who have completed their sentences. The dispute came down to the definition of what it meant to complete the sentence. The Eleventh circuit upheld the interpretation of the law that includes fines, fees, and restitution as part of the sentence. The lower court had held that that interpretation constituted an unconstitutional “poll tax.” This ruling rejected that characterization and determined that fines, fees, and restitution are “penalties, not taxes,” holding that “[b]ecause court costs and fees are legitimate parts of a criminal sentence — that is, part of the debt to society that felons must pay for their crimes — there is no basis to regard them as a tax.” See the ruling and reports from Bloomberg News, CNN,  The Orlando Sentinel, and Reuters.

Other

While many courts continue to hold proceedings remotely, some courts are resuming in-person appearances; safety is a high priority.  See reports from NPR looking at New York City and from The Associated Press covering New Hampshire and a release from the Administrative Office of the US Courts. 

September 11, 2020 in Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 8, 2020

Requests for Extension of Time on Appeal and the Standards of Appellate Practice

Diogenese
On January 1st, 2020, while on vacation with my family, I was pushed by a passing speadboat into a concealed piece of broken pipe while snorkeling, resulting in a quick trip to the emergency room and 18 stitches. At least I got my bad luck out of the way, I consoled myself, and the rest of 2020 would be better. Right?

I thought about that naivete while I was writing a motion for extension of time in an appeal yesterday. I sought the extension because, the week the clerk certified the record to the court, I was caring for my mother and eventually admitting her to the hospital. The next week, one of my partners at work tested positive for Covid-19, and we had to unexpectedly extend and tighten our work-from-home rules. This week, my wife is going to have surgery. And while I am trying to care for everyone and help my children with school, while keeping up with work, I am hobbling around on a broken foot that is not healing as it should. 

Fortunately, the court I am preparing this appeal in has adopted a code of appellate practice, in this case, the Texas Standards for Appellate Conduct. Adopted in 1999, Texas was the first jurisdiction to adopt such standards specifically for its appellate practitioners. Since then, several courts have adopted similar standards and expect those practicing in the courts to follow them.

In many ways, these standards codify a practice of civility that has traditionally been followed by those who practice regularly in appellate courts. And while the standards are not mandatory, and cannot provide a basis for sanctions, following them is expected and deviation is strongly disfavored.

Being gracious with requested extensions is addressed twice in the standards. First, Standard 10 of a "Lawyer's Duties to Clients," requires that "Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel." And again, Standard 2 of a "Lawyers' Duties to Lawyers," states that "Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel."

These two rules are based on different stated principles. First, that the lawyer's duties to the client must be placed in the context of the system in which they work, which also involves duties owed to the courts and opposing counsel. And second, that only if opposing counsel treat each other with dignity and respect can the effectiveness and integrity of the system be preserved.

Some refer to these rules of comity as part of "the golden rule" You should treat opposing counsel as you would wish to be treated. By including this instruction in the section referencing client duties, and by requiring that the standards be given to clients, the rule is placed in the proper context and explained before any accommodations are sought.

If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).

If there is some reasonable basis for the extension, then it will likely be granted. Opposing such a request not only makes you look unreasonable, but can create a stigma for you to carry around the next time you appear in that court.

Coronavirus, murder hornets, ransomware attacks, fires, rioting, and whatever comes next have already made this an extraordinarily difficult year. Indeed, the practice of law is difficult even in the best of times. A bit of grace is always appreciated, even in good years, and is doubly appreciated now. Not just by opposing counsel, but also by the Courts.

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908)

 

 

September 8, 2020 in Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Sunday, September 6, 2020

Jamison v. McClendon -- A Missed Opportunity

In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.[1]  

Then, Judge Reeves let the officer off the hook.

Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.

By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation.[2] The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever.[3] Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search.[4] To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”[5]

Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.

To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.

The praise afforded to Judge Reeves’s opinion, however, should stop there.  Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.”[6] Professor Kerr further stated as follows:

My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern.  But there's no plausible argument I am aware of that any of those justifications could apply.  To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’[7]

For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.

More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.”[8]  Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law.  The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?  

Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”[9]

Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.”[10] But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong. 

Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.

 

[1] Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)

[2] See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp

[3] See id.

[4] See id.

[5] Id.

[6] Id.

[7] Id. (internal citation omitted) (emphasis in original).

[8] Id. (emphasis in original).

[9] Id.

[10] Jamison v. McLendon, 2020 WL 4497723, at *29.

September 6, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, September 1, 2020

Book Review - Classical English Style

 

Classical English Style, by Ward Farnsworth, is another must-have for the library of an appellate advocate. Farnsworth, who is Dean and John Jeffers Research Chair in Law at the University of Texas School of Law, has written an engaging, easy to read guide to English style that adds to his works on persuasion and rhetoric.[1] The text includes examples, mostly from the eighteenth and nineteenth centuries from well-known stylists such as Abraham Lincoln and Frederick Douglas. It also includes examples from Shakespeare and the Bible alongside more modern examples from Franklin Roosevelt and Churchill.

Farnsworth begins, where we all must: Simplicity. “There are two ways to say almost anything in English: with little words or big ones.” The book discusses how the English language developed from words with Germanic or Saxon roots and words with French or Latin roots. Saxon words tend to be shorter and more direct and thus, should be preferred by writers. He provides a list to demonstrate:

CES
Next, the author discusses word choice and rhetorical devices such as metonym and hyperbole and how to use those devices to great effect. He then turns to sentence structure and length and provides examples of the effective use of variation to engage and persuade. A discussion of passive voice includes examples of its effective use.

The final third or so of the text discusses rhetorical devices such as anacoluthon—a technique to challenge readers to think more deeply or to represent stream-of-conscious thought; rhetorical instruction and announcement; and cadence.

One thing the text lacks is annotations to the examples. While the text often discussed the use of techniques in the examples, it would have been helpful to visually highlight the use of different techniques in a few of the examples in each section to draw the reader’s attention to the technique. This is a small quibble, and perhaps reflects more on this author’s shortcomings than on the text.

Classical English Style will help improve both written and oral advocacy; Farnsworth writes in a clear concise style—himself a model of classic English style.

 

[1] Ward Farnsworth, Classical English Rhetoric (2016); Ward Farnsworth, Classical English Metaphor (2010).

 

September 1, 2020 in Appellate Advocacy, Appellate Practice, Books, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)

Saturday, August 22, 2020

Jamison v. McClendon:  Lessons in Rhetoric and Persuasion

The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community.  United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order.  In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings.  In form, the slip opinion has a great deal to teach us about writing. 

If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion.  The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.

Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing: 

Clarence Jamison wasn’t jaywalking.1

He wasn’t outside playing with a toy gun.2

He didn’t look like a “suspicious person.”3

. . . .

Jamison, 2020 WL 4497723 at *1-2.  Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.”  Id. at *1 nn. 1-15.  The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years.   Id. at *1-2.

Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:

Clarence Jamison was a Black man driving a Mercedes convertible. 

As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.

Nothing was found.  Jamison isn’t a drug courier.  He’s a welder.  

Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing.  So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.

Id. at *2.

The court finished the introduction with a traditional roadmap.  Judge Reeves explained the overall role of precedent and stare decisis, stating:  “This Court is required to apply the law as stated by the Supreme Court.  Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity.  The officer’s motion seeking as much is therefore granted.”  Id. at *3.  But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.”  Id.  Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction:  “This has to stop.”  Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).

In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity.  Then, ending the slip opinion with a specific call to action, Judge Reeves charged us:  “Let us waste no time in righting this wrong.”  Id. at  *29.  At least one court has already cited the slip opinion.  See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”). 

Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity.  But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.

August 22, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Friday, August 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, August 14, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court rejected a request to stay a trial judge’s ruling that suspended a requirement that an absentee ballot be filled out in front of a witness or notary, thus making absentee voting in Rhode Island easier. The court noted the contrast to last month’s ruling (Merrill v. People First of Alabama) that upheld a similar Alabama witness requirement for absentee ballots, stating that unlike “cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Thus, the Court found that the groups challenging the ruling “lack[ed] cognizable interest in the State’s ability to ‘enforce its duly enacted’ laws.”  See the order here and reports from The New York Times, CNN, and Politico.

  • The Court denied a request from the NCAA to stay a lower court ruling that allows colleges to provide education-related expenses to athletes. The challenged Ninth Circuit ruling upheld a district court’s injunction that found that the NCAA violated antitrust laws by barring schools from providing such expenditures to student athletes. The injunction will therefore stay in place pending the NCAA’s appeal. See reports from CNN and USA Today.

  • The Federalist Society’s D.C. Lawyers Chapter hosted its annual U.S. Supreme Court round up this week covering the 2019-2020 term. A recording of the event is available at this link.

Federal Appellate Court Opinions and News

  • The Eleventh Circuit upheld a lower court’s decision finding unconstitutional a Florida school’s transgender bathroom policy that prohibited a transgender student’s using the bathroom that matched his gender identity.  In upholding the decision, the court recognized that “[a] public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use.” The Eleventh Circuit ruling will affect school policy in Florida, Georgia, and Alabama. See order and reports from Courthouse News, CBS News, and Law.com.

  • The D.C. Circuit blocked a lower court’s order that Hillary Clinton be deposed as part of a lawsuit seeking records related to her use of a private email while Secretary of State. The ruling found that the stated topics for Clinton’s deposition were “completely attenuated from any relevant issue in [the FOIA] case.” See the order and reports from The Hill, Law.com, and Politico.

  • The Second Circuit upheld a lower court ruling that challengers lacked standing for their claims that NY gun licensing laws violated their Second Amendment rights. The challenge was to NY’s general prohibition against the possession of a firearm without a license. See the order and report from Bloomberg Law.

  • The Eighth Circuit has vacated and remanded for reconsideration a district court’s 2017 order enjoining four Arkansas abortion law that ban certain procedures and impose criminal penalties on doctors. The challenge claimed that the requirements of the laws could block access to all abortion procedures. The Eighth Circuit relied on Justice Robert’s concurrence in the June 29, 2020, decision in June Medical Services L. L. C. v. Russo and remanded for reconsideration in light of Justice Robert’s emphasis that “wide discretion” should be given to legislatures “in areas of medical uncertainty.” See the order and reports from Courthouse News, CNN, The Hill, and The National Law Journal.

State News

Recognizing the racists origins of the phrase, a Massachusetts court has refused to use the term “grandfathering” in its orders.  See footnote 11 in the order and a report from The New York Times.

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

Sunday, August 9, 2020

The Curious Case of Chief Justice John Roberts

Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.

By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections.  As Roberts stated during his confirmation hearing:

A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.[1]

Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions,  and thus reach decisions that would favor conservative policy positions.

They were wrong.

Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation.  To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act.[2] In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster.[3] Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act.[4] And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office.[5] The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.

In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome.[6] Chief Justice Roberts’s decision was surprising in many respects. Specifically,  Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.”[7] Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided.[8]  Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity.[9] Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.

Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.

All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:

[A] much different view of the Court’s role is possible.  That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.[10]

Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.

So what is going on here?

The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.

Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.  

It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”[11]

 

[1] Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

[2]  567 U.S. 519 (2012).

[3]  See id.

[4]  570 U.S. 529 (2013).

[5] 572 U.S. 185 (2014).

[6] 136 S. Ct. 2292 (2016).

[7]  Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts

[8] 138 S. Ct. 2448 (2017).

[9] 140 S. Ct. 1731 (2020).

[10] 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[11] Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

August 9, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Thursday, August 6, 2020

Appellate Review of Video Evidence

This is a post by the Hon. Pierre H. Bergeron, a judge on the Ohio First District Court of Appeals.  Judge Bergeron will be joining us as a regular blogger.

We live in an era of instant replay.  Every sports fan, when witnessing a close play in a game, reflexively thinks, “I wonder what the replay will show?”  In our instant replay culture, with video coverage of almost every move we make, this begs the question of what standard of review should appellate courts use when assessing video evidence.  In days gone by, several witnesses might have testified at trial as to what they saw when the crime occurred, and appellate courts rightly deferred to the jury or trial judge in their assessment of credibility of these witnesses.  But now, in many cases, we have video evidence of the crime (or other critical events) that we can watch.  As video evidence becomes an almost indispensable element of the modern trial, what does that mean for the modern appeal?   

Some appellate courts apply a deferential standard of review to the trial court’s findings, rooted in how appellate courts historically have reviewed evidentiary matters, whereas other courts gravitate towards de novo review, as a pragmatic response to the power of video evidence.  I would submit, though, that, more often than not, many courts do not squarely acknowledge the standard of review on this point and probably (maybe reflexively) default to a Potter Stewart-esque “know it when you see it” perspective.  The debate on this point is real and legitimate but it is important to have it in the open.  Our appellate courts should be asking the question of how should we review video evidence. 

Courts applying deferential review generally do so on grounds that largely mimic accepted justifications for deferential review of a trial court’s credibility and factual determinations generally.  Because video-recorded evidence may be susceptible to varying interpretations, reviewing courts typically highlight the trial court’s unique vantage point for resolving these conflicts. Courts also justify deferential review because it preserves a trial court’s role within the judicial system as the factfinder. Finally, appellate courts remain leery about the danger of making litigants essentially retry issues on appeal, needlessly squandering judicial time and resources.  State v. S.S., 162 A.3d 1058, 1060 (N.J. 2017); Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).

By contrast, when selecting de novo review over a more deferential approach, appellate courts begin their analysis with a cautionary tale about providing deference to a trial court’s factual determinations. Trailing closely behind this point is usually a caveat: when the appellate court sits in a similar position to review the content or significance of video evidence as the trial court below, the appellate court may independently evaluate that evidence under de novo review. Now what appellate courts deem a “similar” position is up for debate, but ordinarily courts consider whether the trial court primarily relied upon the video evidence, whether controlling facts contained within the video are in dispute, and the thoroughness of the trial court’s factual findings (some cases without factual findings pave the way for de novo review).  See State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000); People v. Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

I know there are at least a couple of cases during my tenure as an appellate judge when the video evidence swayed me from affirm to reverse (or vice versa).  In these instances, the power of the video evidence was simply impossible to ignore, regardless of what standard of review governed. Even the staunchest supporters of deferential review would probably have allowed for such meddling with the trial results when the video paints a decisive picture.  Powerful policy justifications certainly animate both sides of this debate.  And, overall, there is some need for flexibility here.  The important take-away is that, whatever side of this debate you prefer, courts need to be candid about this standard of review point.  After all, the standard of review in a lot of these cases can prove dispositive. The parties need to understand what they have to work with, and the trial courts likewise need to internalize what is being asked of them (for example, if the appellate court faults the trial court for a lack of findings).  I look forward to seeing this debate unfold, and to potential new and innovative ways to approach this evidence that is becoming prevalent in the modern appeal.

August 6, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

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

Tuesday, July 28, 2020

Manageability Is For Suckers

Much of the initial commentary on the Supreme Court’s fractured opinion in June Medical Services v. Russo focuses on the future of abortion rights, delving into the analytical choices made by Justices Breyer, Roberts, and Alito. But one overlooked theme from the opinion came from Justice Gorsuch’s brief discussion of justiciability. In his dissenting opinion, Gorsuch alluded to a broad requirement for manageable standards—even in cases not previously considered political questions—that could render the Court’s footprint in constitutional litigation significantly smaller over time.

Justiciability was not the only focus in Justice Gorsuch’s dissent. He primarily critiqued the plurality for improperly equating the factual record in June Medical Services with the factual record in Whole Woman’s Health v. Hellerstedt, decided four years earlier.[1] Gorsuch argued that Whole Woman’s Health included a fully-developed factual record specific to the medical and economic realities of Texas; the plurality erred by relying on that same record to find that the admitting privileges law at issue offered no benefit to the health of women in Louisana.[2]

But Gorsuch’s critique went beyond the way the plurality applied the wrong facts to a legal test that required states to show that their laws accrued some benefit to women’s health. Instead, he critiqued that test directly as one that was so malleable as to be hardly a legal test at all, or at least not the sort of test that the Supreme Court should promulgate in good conscience.[3]

Justice Gorsuch argued that any legal test created by the Court should at least be “replicable and predictable,” making it easier for lower courts to follow the Supreme Court’s jurisprudence.[4] Gorsuch then noted that “an administrable legal test even lies at the heart of what makes a case justiciable.”[5] The plurality’s test was not sufficiently manageable; Gorsuch equated its “all-things-considered balancing of benefits and burdens” to a “hunter’s stew,” whereby judges with wide discretion would combine any factual details that “look interesting” into a decision.[6] Driving home his point, Gorsuch quoted last term’s opinion in Rucho v. Common Cause—where the Court found that extreme partisan gerrymandering is a non-jusiticable political question because allegedly there are no “judicially discoverable and manageable standards for resolving” the issue.[7] This component of the political question doctrine, which the Court typically deploys to avoid deciding issues the Justices feel are best resolved by other branches, was thus central even to constitutional questions concerning individual rights under Gorsuch’s formulation.

If the Court deploys a strict understanding of the political question doctrine’s manageability requirement to any legal test, it could undermine many of the Court’s malleable, yet effective, legal standards. Gorsuch’s manageability requirement would seem to prohibit any test that examines the totality of the circumstances or even a wide array of nuanced factors sure to vary from case to case. The manageability requirement urges the Court to generate more bright-line rules that remove discretion from the lower courts, possibly at the expense of carefully-constructed rulings that improve accuracy in individual cases.

A broad manageability requirement could quickly take hold on the Court. In his own dissent in June Medical Services, Justice Thomas argued that stare decisis did not apply to Roe v. Wade and its progeny, in part, because “poorly reasoned precedents that have proved themselves to be unworkable” are ripe for overruling.[8] Though Thomas’s workability language varies slightly from Gorsuch’s manageability requirement, the sentiment is the same; the Court should not intervene in issues where the only legal tests available are too malleable for lower courts to implement in “replicable and predictable” decisions.[9]

The Supreme Court should strive to give the clearest directives possible to lower-level actors. But a broad manageability requirement in all cases would seemingly preclude the Court from resolving many of the pressing problems on its docket, even when the questions they present are in no way political. Whether Justice Gorsuch and others press for such a manageability requirement should be at the forefront of court-watchers’ minds, both in abortion litigation and elsewhere, for years to come.

 

[1] June Medical Serv. v. Russo, 591 U.S. __ (2020) (Gorsuch, J., dissenting) (slip op. at 14-15).

[2] Id. at 14-15

[3] Id. at 16-18.

[4] Id. at 16.

[5] Id.

[6] Id. at 17.

[7] Id. at 16 (quoting Rucho v. Common Cause, 588 U.S. ___ (2019) (slip op. at 11)).

[8] Id. (Thomas, J., dissenting) (slip op. at 18).

[9] Id. (Gorsuch, J., dissenting) (slip op. at 16).

July 28, 2020 in Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 25, 2020

Using Peer Review for LRW Teaching and in Appellate Practice Too:  Peerceptiv and Eli Review

Tired of seeing yet another post on how to ______ [fill in the blank:  teach, write, argue, live] in our new virtual reality?  Exhausted from never leaving your home and Zooming all day?  Me too. 

In fact, I was reluctant to write one more blog on online writing tools.  However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom:  Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/.  These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others.  They also reminded me how much any law practice can increase attorney writing skills by using peer review.  See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011)   https://eric.ed.gov/?id=EJ933615

As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners.  While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice.  When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer.  Eli Review has a nice blog post on this “giver’s gain.”  https://elireview.com/2017/03/28/givers-gain/

My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors.  Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation.  However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work.  This review can actually save fees, by shortening partner review time, and can help create better briefs across the board.  And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.

In the digital classroom, we can use technology to enhance the peer review process.  Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community.  Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo.  Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.

From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment.  Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades.  The whole process can be anonymous.  Professors using these programs raved about the technical support and positive student feedback from both.  Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year. 

The genius in each product is the science and math behind the assessment scores and review prompts.  Each product truly helps students grow as writers by combining the established science on peer review and some neat online features.  The math and engineering majors in my home called the programs “elegant.”

For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review.  Then, each student grades the reviews he or she received on a 1-7 scale.  Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score.  The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review.  Peerceptiv docs points when a review or assignment is late.  See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.

If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review.  Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments.  Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars.  See https://elireview.com/learn/how/.  This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work. 

This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring.  I plan to use Eli Review only for anonymous, ungraded work.  My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems. 

Thanks for reading another note on online writing tools.  I wish you all good health, and a safe  trip outside sometime soon too. 

July 25, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)

Wednesday, July 22, 2020

AAAL Best Practices for Remote Oral Argument

image from images.law.com

This week, the American Academy of Appellate Lawyers issued a thoughtful set of best-practice recommendations for courts hearing remote oral argument. As this press release explains, the recommendations are the work of a task force of AAAL fellows with experience in remote oral arguments. The Fellows' guidance is driven by the AAAL's longstanding position—which we've previously discussed here—that "oral argument is, and should remain, an important part of the appellate process."

Notably, the report doesn't embrace remote oral argument as the new normal. Although it acknowledges that, post-pandemic, continued availability of remote options could make argument practical where it might not otherwise be—a good thing—it stresses that remote argument is a pale substitute for in-person argument. So remote argument shouldn't become "an automatic or self-justifying way of doing things when it is no longer necessary." Instead, the report emphasizes bringing normal into the new: a key animating principle is that courts and advocates should strive to make remote oral argument as much like in-person argument as possible.

The suggestions it offers are practical and actionable both for courts and for advocates. The Academy's fellows urge courts to use a video-based platform over an audio-only solution and present experience-driven reasons why. At the same time, the report wisely identifies adequate sound quality as preeminent for participants and listeners. And it offers solid advice about how to achieve that: among other things, it urges advocates and judges to consider environmental factors like room size and features. Small spaces with hard walls might produce echoes. Stuff like curtains and bookshelves help reduce echoes and ambient noise. And so on.

July 22, 2020 in Appellate Practice, Oral Argument, Web/Tech | Permalink | Comments (0)

Saturday, July 18, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 18, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court’s vacatur of preliminary injunctions this week allowed the executions of three federal inmates and ended the 17-year hiatus from federal executions. Justice Breyer (joined by Justice Ginsburg) and Justice Sotomayor (joined by Justices Breyer, Kagan, and Ginsburg) each wrote dissents in both. See the orders here and here and reports in The New York Times, The Wall Street Journal, and The Associated Press.

  • The Supreme Court upheld the stay of a trial judge’s order finding unconstitutional Florida’s restriction on the voting rights of people with felony convictions who are unable to pay fees and fines, thus allowing the restrictions to continue. The restrictions limit a 2018 amendment to the Florida Constitution that sought to end the disenfranchisement of people convicted of felonies, except for murder and rape, “upon completion of all terms of sentence, including parole or probation.” Justice Sotomayor’s dissent recognizes that the “order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” See the opinion and reports in The New York Times, The Washington Post, The Associated Press, and Reuters.

  • This week, Justice Ruth Bader Ginsberg announced the recurrence of her cancer, stating that chemotherapy is yielding “positive results” and that she has no plans to step down.  See the statement and reports from The New York Times and Reuters.   

Federal Appellate Court Opinions and News

  • The District of Maryland suspended a rule requiring an in-person doctor’s visit to get medication for a medical abortion, stating that, during Covid-19, the requirement likely violated the constitution as a substantial obstacle” to obtaining an abortion.  See reports from PBS, The Hill, Forbes, and Time.

  • The Ninth Circuit upheld a Montana court’s decision to reinstate the protections for the grizzly bear population in the Yellowstone area.  In 2007 and 2017, the Fish and Wildlife Service attempted to remove the grizzly from protection under the Endangered Species Act. See the opinion and reports from the Jurist and Bloomberg Law.

  • The Northern District of Georgia permanently struck the state’s anti-abortion law, which banned abortion after detection of a fetal heartbeat. The opinion ruled that the law constituted a “pre-viability abortion ban” and thus violated the right to obtain an abortion.   See the opinion and reports from Time and the Atlanta-Journal Constitution.

July 18, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 7, 2020

Briefing Beyond Words - by Mark Trachtenberg

Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.

I.     Introduction

    For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.

II.    How to use visuals effectively.

    To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.

    From my survey, I have identified a few overarching lessons about effective use of visuals.

    First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.

    Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.

    Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.

    Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.

Samsung 2

    Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.

Chart 2

    Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.

    In this paper and powerpoint, I highlight examples of effective visuals from each designated category and offer some thoughts about in which contexts they might be most helpful.

III.    The future of visuals

    While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.

    Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link.[1] But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.

    Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be.[2] One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”[3]

Another scholar speculates that other embedded technology in briefs might include, among other things:

  • Graphics Interchange Format, or GIFS;
  • 360-degree panoramas (of accident scenes, etc.);
  • Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
  • Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.[4]

    As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.[5]

    If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,”[6] podcast links, and even virtual reality experiences.

    For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you![7]

 

[1] See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.

[2] See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.

[3] Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).

[4] See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).

[5] Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).

[6] Id. at 1693.

[7] See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

Blog 5
Blog 5

July 7, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

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

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 27, 2020

Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online:  Preparation and Professionalism

 In March, we had only hours to transition from in-person teaching and law practice to remote options.  As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms.  Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work.  I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online.  (If you could not attend, you can view asynchronous postings here:  https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.)  Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend. 

Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.”  The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward.  As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.”  Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020).  Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances.  In other words, be prepared and yes, wear pants.

Part of our preparation for oral argument today should include a test run of our technology.  Whenever possible, appellate practitioners should do moot courts before oral arguments.  Now, we should make our moot courts a test of both online systems and legal arguments.  Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms.  Id.  They expect us to be familiar with the platforms as well.  In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation. 

We should also be as professional as possible in every detail of our online appearances.  Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance.  The ABA panel stressed smaller points as well.  For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking.  Id. at 2.  Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level.  The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument.  Id.   Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking.  Id.  Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.  

We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves.  For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.”  Id. at 3.  Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.   

June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Sunday, June 21, 2020

The Nature of Judging at the United States Supreme Court

This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California ­– that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity.[1] In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex.[2] In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.[3]

The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.

So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”[4]

Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.

I.    Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts

The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.

Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.[5]

But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision.[6] And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage.[7] Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.

Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.

II.    Ideology matters – for conservative and liberal justices

For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.

However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.

Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.

III.    Bias matters – for both liberal and conservative justices

Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women.[8] In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.”[9] Additionally, African-American defendants often receive harsher sentences than white defendants.[10] As one scholar explains:

[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.[11]

Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.”[12] In so doing, the potential for reaching an improper result increase substantially.

IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”

Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.”[13] As researchers explain:

[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.[14]

Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.

V.    Intuition matters

Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.”[15] As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.”[16] In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.

***

Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.

 

[1] See 590 U.S. ___ , 2020 WL 3146686.

[2] See id.

[3] See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.

[4] Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.

[5] 567 U.S. 519 (2012).

[6] 570 U.S. 529 (2013).

[7] 576 U.S. 644 (2015).

[8] See id.

[9] Id. at 28 (internal citation omitted).

[10] Id. at 29.

[11] Id. at 32.

[12] Id. at 16.

[13] Id. at 24.

[14] Id. at 27.

[15] Id. at 14.

[16] Id. at 21.

June 21, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)