Appellate Advocacy Blog

Citation Overload: Write Smart, Cite Smarter

Citations matter. Love them or hate them: Legal readers want them and, to be fair, they need them. After all, citations are how readers verify what you tell them about the law. But citations are also one of the easiest ways to clutter your writing. So choose your cites with care and make it clear how each supports what you say.

To see why your citation style matters, look at this snippet of legal writing, drowned by cites:

"Defendants contend that the exclusion of evidence relating to the plaintiff's prior legal actions is appropriate pursuant to Rule of Evidence 403, quoting with approval a series of cases that address the question of prejudicial impact versus probative value, including Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002); Collins v. Kibort,274 F.3d 377, 385 (7th Cir.2001); and Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1297 (10th Cir.1988). Further complicating matters, the plaintiff cites to an entirely different set of authorities to counter defendants' argument and to present an antithetical view of the standard for probative value, including Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); Huddleston v. United States, 485 U.S. 681, 688-89 (1988); and L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 89-90 (2d Cir.1998). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Did readers need all these citations? Likely not. Here’s a rewrite without the legalese: 

"Defendants argue for the exclusion of evidence, citing Rule 403 and cases like Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002). The plaintiff, conversely, offers cases like Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Citations are double-edged. Use them well, and they help. Lean on them too heavily, and your writing loses its voice.

Most importantly, if you cite authority, you should either quote the source or directly paraphrase it. But lawyers constantly drop citations on readers without explaining how those citations support their points. Talk about a credibility killer. If your readers need to go look up a case to figure out how it supports the sentence you’re writing, you’ve likely lost them.

Often the cite’s relationship to your sentence is already clear. As you set up the prep for your rule, you might share general principles that require a quick cite and nothing more. “Plaintiff has the burden here. [cite]” might be an example. But that would still be true only if the case said that in so many words—no inference needed.

In any event, when you start explaining your rule, especially an important one, don’t rely on empty citations. Do the inferential reasoning for your reader and put it on display. Link what matters from the source to your points so obviously that even the busiest readers can’t miss it. 🔗

Say you write this:

"Defendants need not touch the plaintiff’s skin to carry out a battery— touching something laying on the plaintiff’s body is enough. Park v. Hoffman, 324 F.3d 42, 44 (9th Cir. 2018)."

When your reader pulls up page 44 of Park, it should say something like: “A defendant contacts another by touching any item on the plaintiff’s body.” Different words but identical meaning.

If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—don’t just cite the case for that general proposition. One option is to explain your inference directly:

"Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. 324 F.3d 42, 44 (9th Cir. 2018)."

Your citation is not misleading because you’re telling your reader what inferences you relied on. You did the inferential work for them. You could also interpret the rule in your own words then explain the supporting facts or quotes with citations.

"Contact with the plaintiff’s skin is not needed. In Park, the court addressed a defendant who ripped a plate from the plaintiff’s hand. 324 F.3d 42, 44 (9th Cir. 2018). . . ."

Now you made clear where the inference came from. Credibility managed. But when your reader will not instantly know what a case said or why you cited it, explain it. So again, avoid using cites like this:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012)."

Instead, explain the citation’s purpose and operation plainly:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012) (considering a contract dispute and explaining courts cannot stop at plain language when interpreting)."

A Brief Must be Pudding with a Theme

Winston Churchill reputedly would refer to flavorless food as a pudding without a theme. He employed the same critique occasionally to a disorderly piece of legislation.  In 1935, he criticized a proposed statute, called the India Bill, as a “gigantic quilt of jumbled crochet work.” To him, it had no “theme,” “pattern,” “conviction,” “simplicity,” or “courage.”  It was, in his view, “a monstrous monument of shams.”

A legal argument without a theme and the other deficient qualities Churchill scored is equally indigestible. It suggests that the advocate had no plan in attempting to persuade the court and little faith in the arguments mustered. A theme unites disparate aspects of the case into a single consistent narrative that enables the reader to understand and sympathize with the argument. A theme weaves together the facts, law, and sense of justice in the writing behind a single common idea to convey a strong and favorable reaction from those you seek to persuade. It allows you to demonstrate that your proposed rule of law is fairer, less complex, more consistent with precedent, or more workable. It therefore better fits the established norms, modern trends, or recent developments. Although a reading judge may not later remember specific details about the case, a consistent theme creates a lasting impression and enables even a fuzzy recollection of key elements to blaze a familiar-seeming path to your desired result and imbue the apt analogies you invoke to have irresistible force.

Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit once advised that brief writers should:

                        Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument                                take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too                       many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme also allows you to praise the insight or demonstrate the error in the lower court’s decision with proper respect. The theme should fit the case naturally, acknowledging its limits and not be the product of a hard sell. Those limits may involve the types of cases it fits or fact patterns that call for different considerations. Those acknowledgments provide welcome credibility to the judicial reader. By tying together loose ends and excluding problematic applications for separate treatment in a logical fashion, the argument will render the judicial enterprise easier and the argument more appealing.

A theme is compelling storytelling. For a divided court that takes markedly different  approaches to issues, it can make all the difference. Take, for example, statutory interpretation. Some judges adhere to the text and do not look beyond it. Others seek to divine congressional intent from legislative history. Yet others focus on practical issues to make legislation workable. Regardless of the judges’ approach, a theme creates an overarching means of fitting each of those forms of guidance into a consistent answer that can yield a favorable result. Do not leave your panel with a flavorless pudding.

Neurodiversity and Legal Advocacy: Autism

Introduction

The final form of neurodiversity I will address individually is autism. Autism is a complex neurological condition that manifests in different ways. It often includes differences in social communication and interaction, sensory processing, intense passions or interests, and repetitive behavior. About 2.2% of American adults are on the autistic spectrum.

Haley Moss is an attorney who was diagnosed with autism as a child. Here is how she describes her experience:

I was a late talker. I did not speak until I was four years old, and the language I did use was echolalic - often repeating words and phrases my parents used originally heard from cartoons or movies. I regularly stim in order to feel less nervous or to feel a form of sensory input, whether it is twirling my hair, fidgeting, or flapping my hands as form of full body joy when I am so excited, I cannot keep it to myself.

My special interests have changed over the years. While everyone has hobbies or topics that they find enjoyable or fascinating, with autism, it is often the depth of the knowledge that separates the interests from neurotypical pleasure. As a little kid, I was once all-knowing about Ancient Egypt before having an all-encompassing knowledge of the Harry Potter books and movies, to an encyclopedic-level knowledge of Lilly Pulitzer prints and patterns. I would go so far as to say that in law and legal practice, having one particular niche area of practice you enjoy is incredibly similar to an autistic special interest (writing and taking about disability law, the Americans with Disability Act [ADA], and neurodiversity, for instance, surely feels that way for me!).

The executive functions prove to be the most difficult for me, along with social interactions. Sometimes I get so engrossed in a task or something I am passionate about that I forget what time it is or what else to prioritize. I make a lot of lists to make sure the most important things get done. Socially, I will miss the sarcastic joke or put forth double the effort into networking and friendships because it can feel unnatural or far more difficult than it may be for a neurotypical person.

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals 16 (2021)

Strengths

As with other types of neurodiversity, a strengths-based approach to autism helps identify how this different way of thinking can strengthen a practice or legal career, and helps educators focus on leveraging those strengths for their students. The following are some of the strengths identified in those with autism.

• Attention to detail
  Autistic people can enter states of tunnel vision or extreme focus, which, coupled with a strong attention to detail, can lead them to excel at detail-oriented work, including document review, spreadsheet analysis, and similar tasks.
  
  
• Memory
  Many people with autism have excellent focused memory systems, leading to expertise in subject areas and strong recall.
  
  
• Problem solving
  According to some studies, autistic people are up to 40% faster at problem solving, and less likely to be swayed by emotional impact when making decisions.
  
  
• Strong work ethic
  Because of strengths in focus and problem solving, many employers say that autistic employees demonstrate a strong work ethic and satisfaction with tasks, including repetitive tasks.

Weaknesses

As with with forms of neurodiversity, there are attendant weaknesses that are common in people with autism. These weaknesses can be managed and accommodated in various ways.

• Social cue interpretation and display
  Autistic people often have a difficulty in reading emotions, and often are perceived to be emotionless or “flat” by neurotypical people. Awareness of this potential difficulty can prevent misunderstanding.
  
  
• Rigid thinking
  Many autistic people do not respond well to change, and this includes thinking outside of one’s own internal system of thought. Preventing last-minute surprises and change can be very helpful to someone with autism in the workplace. Scheduling events and calendaring deadlines with "tickler" dates to avoid surprises can be very helpful.
  
  
• Self stimulation
  Self-stimulation, or stimming, is a coping mechanism by some people with autism, where they engage in some sort of repetitive physical activity to lessen their anxiety. As Haley Moss describes her own hair twirling or hand movements, it is common for those with autism to use physical movement in ways that can seem distracting. While those with autism may be self-accommodating or undergoing behavioral therapy, cutting down the noise and distraction of work environments is also helpful to avoid the stressors that can lead to the behavior.
  
  
• Compulsions and obsessions
  Many autistic people have intense focus, sometimes resulting in an obsession with a particular subject or object. Setting timers or otherwise blocking out time for projects can help cut short focus on one thing when others must be addressed.
  
  
• Sensory overload
  Many autistic people have difficulty filtering out sensory data. As a result, they have to process all of that information, leading to sensory shutdown or meltdowns. Again, a quiet work environment, without harsh lighting or persistent noise, can be very helpful.
  
  
• Executive functioning
  Many autistic people have difficulty in accomplishing complex tasks when given to them as a block. Some may focus on certain details and miss the big picture. Others may have difficulty in organizing thoughts or paying attention to a given task. Assigning projects in steps rather than as an entire finished product can be extremely helpful.

Adaptations and accommodations

My next entry will answer the "so what now?" question some of you may have. You have been introduced to the concept of neurodiversity and you have some familiarity with the strengths-based approach to leveraging and coping with the strengths of weaknesses of dyslexia, ADD, and autism. But not every student or associate will disclose their particular neurodiversity, and many remain undiagnosed. Fortunately, there are best practices to employ in the classroom and workplace to help those with neurodiversity maximize their potential, and those practices are good for those who are neurotypical, as well. More on that next time.

Further Reading:

https://embrace-autism.com

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2021)

(photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

There's No Such Thing As "Legal Writing"

In law school, students take legal writing courses and learn, among other things, how to: (1) analyze and synthesize the law; (2) organize arguments using IRAC/CRAQ; (3) eliminate repetition and irrelevant facts from a legal document; (4) address counterarguments and acknowledge weaknesses in your case; and (5) cite to and rely upon legal authority. These skills are certainly useful and will help students maximize the persuasiveness of a motion or brief.

However, law students and lawyers should recognize that there is no such thing as “legal writing.” There is only excellent writing. In other words, whether you are writing an appellate brief, a fiction novel, a narrative non-fiction book, a textbook, a biography, or, for that matter, directing a movie, the principles and techniques of great writing remain the same.

Great writing has the following characteristics – regardless of whether it is in a legal context – and should be used by law students and lawyers to ensure the quality and persuasiveness of their legal documents.

1.    Hook the reader.

Why should readers care about what you have to say? To engage readers, you must hook them at the beginning of your motion or brief. This requires a powerful opening sentence, a compelling story and narrative arc, a vivid description of the critical events, and an appeal to the reader’s emotion (where appropriate) and sense of justice. Put simply, a great brief is like a great movie.

Consider the following examples:

Example 1:

In this case, the defendant is guilty of murder. On April 17, 2024, she murdered her husband. She did it because she wanted to be free to pursue another relationship with a man who refused to be with her while she was married. So she planned the murder and killed her husband in a very heinous manner that caused tremendous suffering and pain.

Example 2:

On April 17, 2024, at 10:45 p.m., the defendant stabbed her thirty-seven-year-old husband 124 times. Her husband screamed as he experienced unimaginable pain. He begged and fought desperately for his life. But the defendant ignored these pleas. Instead, she plunged a sharp knife into her husband’s body relentlessly. After being stabbed 123 times, seeing that her husband was still alive, the defendant plunged the knife into her husband’s chest one last time, ending a life that had so much promise. And she killed her husband solely because she wanted to be with another man.

The latter example, although not perfect, is more effective. It shows, in vivid detail, how horrible the defendant’s crime was and appeals to the reader’s emotions and sense of justice. After all, if you read the latter paragraph, how would you feel about the defendant? You’d probably want to convict her.

Also, make sure that your introduction is concise. If it is too long, you will lose (or at least annoy) the reader. Think about it: how many times have you gone to see a movie that was scheduled to begin at 8:00 p.m., only to have the movie begin at 8:40 p.m. because there were seven or eight previews? This understandably frustrates many moviegoers, and that frustration may affect how they view the feature.

You never want this to happen when drafting a motion or brief. If you write a lengthy introduction, you risk alienating the reader, and when that happens, it will affect the reader’s view of the credibility and persuasiveness of your arguments. Indeed, a critical part of hooking the reader is to get them to like the writer, which increases the odds that the reader will be captivated by and emotionally invested in your story (and give you the benefit of the doubt in close cases).

2.    Maintain your credibility.

Most people remember the Friday the 13th movie franchise, where Jason Voorhees mercilessly kills numerous groups of unsuspecting camp counselors. Although the first installment of Friday the 13^th received fairly positive reviews, the dozen or so sequels received almost uniformly negative reviews. Why? Well, at least in part, it was because no matter how many times Jason Voorhees was killed, including being axed to death, nearly decapitated, drowned, and ejected from a spaceship, he miraculously came back to life. What nonsense. The Friday the 13th sequels were critically panned because the story had no plausibility or credibility whatsoever.

Never make this mistake in your writing. For example, if you are representing a defendant who is charged with manslaughter for sending text messages to her husband that encouraged him to commit suicide, don’t say this:

The defendant is not responsible for this tragic death. For years, the defendant and her husband enjoyed a blissful marriage. However, the defendant’s husband suffered from depression for many years and, despite receiving treatment for depression and taking numerous medications, failed to improve consistently and substantially. Thus, when the defendant’s husband texted the defendant and expressed a desire to end his life, the defendant agreed that this was a prudent decision, and the defendant, despite the unimaginable difficulty, supported her husband’s choice. In short, this was an act of love. It was an act of mercy. And the defendant misses her husband every day.

Yeah, right. And Elvis faked his death. This is so utterly ridiculous that it requires no further explanation.

Additionally, make sure that your argument is consistent with and supported by the facts and law. Never misrepresent or mislead. Do not make arguments that fail to pass the smell test. Be honest with the reader. Acknowledge weaknesses in your case, such as unfavorable facts and legal authority, and explain why they should not affect the outcome you seek. After all, when you lose credibility, you lose your case – and reputation.

3.    Get to the point.

Over the years, many audiences have watched movies that, while in some instances quite good, could have been great except for the fact that they were insufferably long. For example, Titanic, which won the Academy Award for Best Picture in 1997, was a very good movie but far too long. Specifically, it took three hours and fifteen minutes to tell us what we already knew.

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

Similarly, Pearl Harbor was needlessly three hours long. The Japanese attacked Pearl Harbor. It resulted in a tragedy of immeasurable proportions. We don’t need three hours to understand what we already know.[1]

Why are some movies too long? Because they include, among other things, unnecessary sub-plots, dialogue, and characters.

Poorly written motions and briefs make similar mistakes. They include irrelevant facts or law. They discuss legal issues that are tangential or entirely inconsequential. They incorporate unnecessary details. They are unduly repetitive. They cite five cases to support a basic legal proposition. In so doing, they tell a story that is more akin to Friday the 13th, Part 9 than Gone With the Wind.

When in doubt, err on the side of brevity rather than length, as unnecessarily long motions or briefs will bore a judge, damage your credibility, and decrease your chances for success. Get to the point quickly. Tell the court what you want and why you should get it. In many cases, less is more.

4.    Polish.

Your legal filings must be polished. They should have, among other things, no grammatical or spelling errors, artificial emphasis, unnecessary block quotes, and useless string cites.

If you cannot follow these rules, why should the reader trust that your arguments accurately reflect the law and facts?

5.    Appeal to common sense.

Judges are human beings, not robots. They do not apply the law to the facts in a hyper-technical manner. Rather, they want to do the right thing. Accordingly, and particularly where the law is broadly worded and can be interpreted differently, do not just argue that the law supports the result you seek. Instead, explain why it is the right and equitable result. In other words, where appropriate, incorporate policy arguments in your motion or brief.

***

Ultimately, do not think that legal writing is a separate genre or specialized form of writing. It isn’t. Focus on being a great writer, not a great legal writer.

 

[1] Certainly, some movies are justifiably lengthy, but only because the complexities inherent in the story and its characters require such length. Examples include Gone With the Wind and The Godfather, Part II.

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

Recognition is Nice, But Results and a Compelling Story is What Counts

Advocates enjoy receiving recognition. We like to think that a job well done is a reward in itself. When the effort establishes an important new precedent, the satisfaction ought to be even better. A week ago today, I was privileged to receive the 2024 Appellate Advocacy Award from the National Civil Justice Institute for a 2022 victory in the Ohio Supreme Court. When the award was announced, I received a nice email of congratulations from a justice on another state’s supreme court, indicating that the award was well deserved based on my win. I appreciated the congratulations that the award and the many emails I received represented, but it also had me pondering what makes a judicial victory sufficiently different that it merits this type of recognition.

Certainly, there are many run-of-the-mill appeals that are taken as of right but do not move the needle on the case or on the law. These appeals are important to the clients, but perhaps to few others. Still, others have great potential to answer issues not yet addressed by the courts or to change the law. My recognition came in a case that successfully challenged the constitutionality of a state law as it applied to our case. It overcame considerable odds to reach that conclusion. The skill and effort I employed, and even the inventiveness of the arguments and strategy I utilized, would have been no different had the sharply divided court come out the other way. So, plainly, one element that counts, disproportionately, is victory. We celebrate winners and not equally important losing efforts that may pay off later.

Another element necessary for recognition is a compelling story. Without one even the most surprising win, the creation of a leading precedent in an area of law, and an innovative approach to the argument may not inspire the recognition that carries with it even broader impact. I was lucky enough to have a case come to me with compelling underlying facts and a cry for justice that melted even the most hardened hearts. It was the story of a young girl, lured to sleepovers at a friend’s home, only to have a nighttime drink spiked to put her in a deep sleep and sexually assaulted by friend’s father – 34 times. He also videotaped the assaults of both this plaintiff and others. He went to prison, but the psychological injury to the plaintiff led to homelessness, drug addiction, and a long road to finding a more normal life.

Despite a substantial jury verdict, consisting entirely of noneconomic damages, state law required that the court reduce it to $250,000, which the trial court did. The reduction sent a message that the value of the plaintiff’s life was a small fraction of what the jury determined. An intermediate appellate court also rejected the constitutional challenge. At the state supreme court, a bare majority agreed that the state damage cap law’s exemption for permanent physical injuries of a catastrophic nature, irrationally excluded permanent, catastrophic psychological injuries, in violation of due process. Dissenters sought to avoid the question by latching onto the idea that the issue was moot because the defendant was judgment-proof. Another dissenter complained that the nine months from oral argument to decision was insufficient time for him to research and write a proper dissent by a majority determined to issue the decision before the end of the year. To me, that seemed an odd complaint, given that appellate advocates normally have but 30 days to brief the issue (especially as I had been brought into the case at the reply-brief stage).

But the dissent was a bid to encourage a motion for reconsideration. The chief justice, who had written the majority opinion, was stepping down at the end of the year due to hitting the mandatory retirement age. If reconsideration spilled over to the new year, a new and very different majority would decide the motion.

Reconsideration was filed late at night on December 26. Anticipating that motion, my response was largely written. I tweaked it to address some unexpected citations and filed the next morning. Reconsideration was denied December 29. The case is Brandt v. Pompa, 171 Ohio St. 3d 693, 220 N.E.3d 703 (2022). And the now-adult plaintiff knows the value of her life was vindicated even if she never sees any of that money – and others in similar circumstances know that their claims will not be artificially degraded.

A Few Unconventional Writing Tips

Great writing is not simply about following conventional rules. It is about knowing when—and how—to use unconventional writing techniques that enable creativity and enhance persuasion. Below are a few unconventional writing tips that can improve the quality and persuasiveness of your brief.

1.    Reverse the narrative.

There is no such thing as “legal” writing. There is only great writing (and writers).

The best “legal” writers do not simply use conventional writing techniques. Rather, they are creative. They break the “rules” when necessary. Most importantly, they use the same literary techniques used in fiction, narrative non-fiction, and memoirs.[1]

One of these techniques is reversing the narrative. Doing so means that you begin your narrative at the end, not the beginning of the story. The objective is to create a compelling opening scene that captures the audience’s attention and enables them to invest in your story on a personal and emotional level.

Consider the following examples involving a hypothetical case where a plaintiff is suing an airline after a plane crash took the lives of the plaintiff’s two children.

Example 1:

Universal Airlines Flight 5638 departed from Los Angeles International Airport on June 12, 2023, carrying 128 passengers, and bound for Newark, New Jersey. The plane, a Boeing 737, took off without incident and climbed to 35,000 feet. For the next two hours, except for moderate turbulence, the flight proceeded without incident. However, approximately two-and-a-half hours into the flight, the pilots struggled to control the plane, as it lost altitude at a rate of 2,000 feet per minute. Attempting to regain control of the plane, the pilots increased the plane’s speed and rate of ascent, but despite these efforts, the plane entered an aerodynamic stall from which the pilots could not recover because their ability to control the plane diminished substantially. Sadly, the plane crashed in Omaha, Nebraska, killing the pilots, crew, and all 128 passengers. The National Transportation and Safety Board concluded that a fire in the plane’s cargo hold, which was caused by faulty wiring, caused the pilots to lose control of the plane and led to the crash. Universal Airlines was negligent in failing to identify and repair the faulty wires and, as a result, is liable to the plaintiff for damages.

Example 2:

Omaha, Nebraska, a vibrant city where the College World Series is played annually and was scheduled to begin on June 14, 2023, lost its innocence two days earlier on June 12, 2023. In a field spanning 500 yards, 128 bodies, most of which were unrecognizable, lay dead. Among them were fourteen children, including five under the age of three, four beloved high school teachers, and a husband and wife who were traveling to New York with their children to visit Manhattan for the first time. Scattered across the debris field were clothing, jewelry, and stuffed animals. The most heartbreaking discovery was a letter written by a passenger as the plane was going down, which read “Mom, I will always love you.” The tragedy’s magnitude is immeasurable, and the most disturbing aspect is that it was preventable. Universal Airlines had the ability—indeed the responsibility—to fix the faulty wiring in Flight 5638’s cargo hold and to ensure the safety of its passengers. They did not. Valuing profit over safety, Universal Airlines, knowing that the wiring was faulty, deemed it an “acceptable” risk and continually certified that the plane was airworthy, even though it knew that the wiring was essential to maintain the plane’s hydraulic system. As a direct and proximate result of this negligence, 128 passengers never made it to New York. Their final resting place is in Omaha where only a few articles of clothing, stuffed animals, and a letter stating, “Mom, I will always love you,” remain.

This second example, while not perfect, is better. First, it begins at the end and, in so doing, captures the reader’s attention. Second, it appeals to the reader on a personal and emotional level by describing in vivid detail the gravity of this tragedy. Third, it personalizes the victims and emphasizes the need to reach a just result that compensates their families for this tragedy.

Ultimately, think of writing in the same way as directing a movie. Does your narrative hook the audience and maintain its attention? Does it appeal to their emotion? Does it include vivid descriptions that place the reader in the character’s shoes as the character is experiencing noteworthy events? Does it relate to you on a personal level and leave a meaningful—and lasting—impression? Often, beginning at the end is an effective technique by which you can achieve these objectives.

2.    Tell a non-linear story.

Sometimes, you should avoid telling a story, such as in a statement of facts, chronologically. This can produce a tedious narrative that loses the reader’s attention and fails to engage the reader on any meaningful level. It is often more effective to embrace non-linear storytelling, in which you focus your narrative on the major events in the story to highlight, for example, the damage your client has suffered or the appropriateness of the relief you request.

Consider the following examples involving a defamation lawsuit, in which the plaintiff claims that the defendant’s alleged defamatory statements led to substantial reputational harm.

Example 1:

The New Jersey Bobcats drafted the plaintiff in the first round of the major league draft after the plaintiff had a batting average of over .325 during three seasons at the University of Southern California. After two seasons in the minor leagues, the plaintiff was called up to the Bobcats’ major league team, where he played in forty-seven games, batting .279 while committing no errors at shortstop. It quickly became evident, however, that the Bobcats’ manager, Mike Johnson, did not like the plaintiff, likely because the Bobcats had chosen to call up the plaintiff to the major leagues rather than the Bobcats’ other top prospect, Jason Warner, whom Johnson stated publicly was a superior player. Angered by this decision, Johnson berated the plaintiff repeatedly in front of the players and fans and benched the plaintiff for the last two games of the regular season. After the season ended, the plaintiff met with the Bobcats’ general manager and requested to be traded. Subsequent trade talks with several teams, however, proved unsuccessful because of an article published by the New Jersey Times in which Johnson stated that the plaintiff was a bad baseball player, selfish, lazy, and uninterested in the team’s success. The plaintiff also discovered that Johnson had spoken to many teams’ general managers and warned them against acquiring the plaintiff. As a result, although initially expressing interest, no teams decided to acquire the plaintiff, and he was demoted to the Bobcats’ minor league affiliate the next season and eventually released. Johnson’s statements were defamatory and entitle the plaintiff to damages.

 Example 2:

Mike Johnson, the head coach of the New Jersey Bobcats, despised the plaintiff. Indeed, Johnson stated publicly to the media and general managers throughout the major leagues that the plaintiff was a “horrible person,” “a cancer in the Bobcats locker room,” a “below average player who could never succeed in the major leagues,” “a team’s worst nightmare,” and “one of the worst hitters he has ever seen.” Additionally, in the days before he was demoted to the Bobcats’ minor league system, Johnson publicly mocked the plaintiff in the Bobcats’ locker room, calling him a “joke” and “the worst thing to happen to the Bobcats in the last twenty years." Johnson made these statements even though the plaintiff batted .279 – and committed no errors -- in forty-seven games as the Bobcats’ starting shortstop.  Due to Johnson’s abusive behavior, the plaintiff requested a trade, and despite six teams expressing initial interest in acquiring the plaintiff, every one of them declined to pursue the plaintiff after Johnson made the above statements to their general managers. These statements, which were false and defamatory, ruined the plaintiff’s reputation and made it impossible for the plaintiff to pursue the successful baseball career that he had worked so hard for and rightfully earned.

Again, the second example is not perfect but is better than the first. Instead of telling the story chronologically, the second example begins with Johnson’s statements, reflecting the extent of Johnson’s hatred of the plaintiff, and which the plaintiff’s performance on the field contradicts. As a result, the second example portrays Johnson as an unsympathetic figure and someone who intentionally disseminated false information to harm the plaintiff’s reputation. This highlights the benefit of telling a story non-chronologically where the facts warrant.

3.    Break the rules.

This point requires little explanation. In law school, you will learn about IRAC/CRAC and conventional writing techniques, which are useful in many instances. However, great writers know that sometimes you should break the rules.  For example, sometimes you should be redundant. You should use the passive voice. You should use a little hyperbole. You should tell, not show, especially if showing involves including irrelevant or unnecessary details. Knowing when to break the rules is a hallmark of great writers.

In short, the best writers know how to think, not just how to write. They think about how best to tell a story, and sometimes that involves breaking the rules to maximize the persuasiveness of an argument.

 

[1] If you doubt this, read John Roberts’ brief in Alaska v. EPA, which is among the best briefs written in a case pending before the United States Supreme Court.

Neurodiversity and Legal Advocacy: ADD

I.     Introduction

Attention Deficit Disorder is another type of neurodivergence, or different way of thinking and processing, that impacts a large segment of the population. About 8% of the population has ADD. But according to one study, over 12% of attorneys have ADD.

For years, ADD was primarily referred to as hyperactivity. It was seen as a moral problem - a failure to focus - until recent advancement have shown that it is another heritable series of traits that leads to a different way of thinking, with manageable deficiencies and valuable strengths.

II.     Strengths

Bob Lobel is a legendary sports personality in Boston. He is known for his integrity, his ability to ad-lib, and his creativity. He attributes these strengths to his ADD.

“What makes me unique come straight from my ADD. I’m like the cut up in sixth grade. I thrive on chaos. I love to ad-lib. I think outside the box. Geez, I can’t think inside the box. I can change leads three seconds before airtime and make up the copy as we go on the air. This is just who I am. It comes naturally to me. That’s why I think of ADD as a gift, not as a liability.”

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder 30 (2005).

Many attributes of people with ADD are gifts. Helping them see and nurture those gifts is key to helping them thrive in their practice.

    A.    Creativity
Whether because of their divergent interests, or simply because they see things differently, people with ADD are often creative in their approaches to life. As problem solvers, they tend to be holistic, and often think outside of the box. They also tend to think quickly.

    B.    Charisma
People with ADD are often described as being charismatic. They are empathetic, because they have had to deal with their own struggles, and tend to approach life with a sense of humor. When they focus on a person, that person knows they are being seen. And their energy and creative approach to life can be contagious.

    C.    Energy
Many, but not all, of those with ADD have a strong sense of energy that they have learned to harness over the years. This energy can be motivation and inspirational in a team setting, and certainly valuable in long trials and other legal efforts. In fact, many people with ADD consider themselves to do better when under pressure. They thrive on the chaos that so often arises in our legal practices.

    D.    Focus
When a person with ADD gets into a focused “flow” state, it is hard to shake it. Many successful scientists, writers, artists, and attorneys with ADD attribute their success to their ability to enter into a state of flow for hours on end. In fact, lawyers with ADD often say one of their strengths is the ability to focus on their work under extreme pressure.

    E.    Tenacity
By the time a person with ADD has their law degree, they have overcome a great deal of adversity. They have developed grit. And they are unlikely to experience serious setbacks the next time they encounter difficulty.

III.    Weaknesses

For most of history, the primary effects of ADD - distractability, impulsivity, and restlessness - were seen as moral failings. As science progressed, it was discovered that ADD was a heritable trait, with physiological differences in certain regions of the brain that caused these issues. If you have a student or coworker with ADD, just telling them to “buckle down and pay attention” probably won’t work. They physically may not be able to do so. But they can learn coping mechanisms and structure.

By the time someone with ADD reaches law school, they likely have a successful suite of coping skills. But law school poses a unique challenge. There are few places where focus and discipline are more valued, and certain addictions more fostered, than in law school and the legal academy in general. And often, students and new lawyers have been plucked from their social safety nets to be placed into that environment.

One of the primary things those students need is the structure that a mentor, or group of similarly neurodivergent peers, can bring. Structure, accountability, and encouragement are important for everyone, but particularly those with ADD. Providing that in some way is vital.

In addition to providing that social support, the following are some areas of difficulty that those with ADD have found successful ways to manage.

    A.     Distractability
“Attention Deficit Disorder” is something of a misnomer. There isn’t so much a “deficit” of attention as a surplus that is spread a bit too thin. Coping with that surplus can take many forms.

First, good health can reduce distractability. Adequate sleep, daily exercise, and a good diet have all been shown to improve focus for those with ADD. Some supplements (like Omega 3 fatty acids) have been suggested to help as well. These all require structure, planning, and likely some encouragement. But it is worth the effort.

Many people with ADD benefit from medication. However, 20-30% of those with ADD say medication does not help. And there have been recent shortages in some medications, like Adderall. As a result, when, what, and how to take medication is a highly personal choice for those with ADD.

There are practical structural steps to take as well. ADD law students on Reddit recommend maximizing your word-processing screen so you won’t be tempted by other apps, or even just taking handwritten notes to escape electronics entirely. Some even try to turn each case into a full narrative, or illustrate the margins, just to keep themselves engaged.

    B.    Impulsivity
It can be difficult for a person with ADD to resist certain impulses. This includes addictions already dangerous to our profession, like drugs and alcohol. But it can also result in risk-taking and other damaging activities as they seek to scratch an itch they can't seem to identify.

Some people with ADD may also have a condition known as Reward Deficiency Syndrome. Regular dopamine release just doesn’t quite produce the same feeling of satisfaction or pleasure for people with RDS. As a result, they are more prone to addiction and risk-taking. Diagnosis of that condition can lead to important coping skills and training, and awareness of that potential susceptibility can make it easier to confront.

    C.    Restlessness
When your mind wants to focus on everything, it can be hard to maintain focus on one thing at a time. In men more than women, this can manifest in hyperactivity. In women it can instead appear as “zoning out.”

The opposite side of this coin is hyper focus, or “flow.” There are time when a person with ADD is so engaged that everything else disappears and time seems to stand still. But of course, it doesn’t. And so the flow state can be equally problematic if not managed, leading to the neglect of other important things.

    D.     Time management
ADD makes time management difficult. This is particularly true in the law, where you need to be sure you have read through and analyzed every detail in a given case or exam question. Law students with ADD recommend seeking accommodations for extra time on exams for this reason. They must read the questions several times to catch all the details, then outline and structure the answers carefully to address them all. Then, at the end, they need time to edit out the rabbit trails.

Similarly, law students with ADD stress the need to set early deadlines. In other words, if a paper is due December 1, and that is the only deadline, there is a strong temptation to wait until November 30th to start. So setting earlier deadlines for research completion, first draft, and final edits, for instance, is key.

The same holds true in practice. Deadlines are best broken down and set at earlier increments than what is imposed by the court. And extra time and attention to reading, organizing, and editing is essential.

To help, many students and attorneys with ADD recommend apps. There are free and paid apps that help with scheduling and reminders. The “pomodoro” technique of setting timers for tasks, followed by set breaks, is often helpful, and can be managed with apps.

    E.    Organization
ADD and organization are not friends. Messy desks, disjointed writing, and scattered schedules are fairly common. So purposeful organization is important.

Many lawyers with ADD recommend apps for assistance with organization. As with time management, there are free and paid apps to assist with organization and to keep you on target.

    F.   Emotional Tolls
Being labeled an underachiever with moral failings rather than a different way of thinking takes a toll on many people with ADHD. While they have accomplished much by the time they reach law school, or get their law license, they may be saddled with a great deal of insecurity or fear of criticism.

Perhaps one of the most important things a professor, mentor, or law partner can do is encourage their student or employee with ADD. Acknowledge and see their strengths and weaknesses, help them with time management and organization and focus, and see them thrive.

Additional Reading:

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder (2005).

AdditudeMag.com

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

Trapped Between Two Precedents

            Appeals often turn on where the line exists between broad principles and specific applications. Advocates fondly cite high-flown rhetoric about something that favors their clients and the heavy burden that must be met to overcome it. On the other hand, opponents may meet that argument with declarations about how no right is unfettered and provide examples of exceptions that align with their position.

            Take, for example, the right to engage in political discussions. A familiar description of the right holds that it represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[1]  The decision also recognizes that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”[2] In fact, the New York Times Court laid down the gauntlet by declaring that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[3]

The clarion call for broad constitutional tolerance of political speech that the opinion represents provides welcome fodder for an advocate seeking to ride a free-speech wave. Yet, just a year later, the Supreme Court retreated a bit from that description of the scope of political speech. Rather than treat the right as completely unfettered, the Court acknowledged that freedom “implies the existence of an organized society maintaining the public order, without which liberty itself would be lost in the excesses of anarchy.”[4]

The two decisions set up a traditional appellate issue that can occur in any area of law: where is the cutoff between the promise and the limitation at issue in a case. Certainly, that conflict cannot be resolved in the abstract. It requires the factual context to determine which approach should prevail in a particular scenario.

            What is important, though, is that an advocate acknowledge the balancing that must take place. Unlike some negotiations, appellate advocacy is not about staking out an extreme position and hoping that a compromise gives you most of what you really want. Instead, it is about convincing your panel that you have adopted a workable and reasonable approach that it should endorse. That is why it is important to recognize the limits of your position, anticipating the pushback and responding to why it still works in your favor.

            At the same time, your position may require new exceptions or a wholesale rethinking of existing precedent. The Supreme Court has developed a reputation for not taking stare decisis as seriously as its predecessors. It has shown a willingness to reconsider precedent and abandon it because it believes the holding was wrong.

            In fact, two justices have called for New York Times, the case I quoted at the top of this post, to be reconsidered, although not as a result of any hostility to free speech per se. Justice Thomas, for example, advocates for reconsideration of the actual-malice standard that New York Times articulated to protect citizens from being sued by public officials over criticism. He has written that the case and decisions extending it “were policy-driven decisions masquerading as constitutional law” without a basis in text, history, or constitutional structure.[5] He has also expressed concern about the “proliferation of falsehoods” as a “serious matter” that might be remedied by “traditional remedies like libel suits.”[6]

            Justice Gorsuch has expressed a similar view, suggesting that the changes in “our Nation’s media landscape . . . in ways few could have foreseen” allows “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world” and should permit some type of corrective mechanism like libel to work as it once did.”[7]

            I mention the possibility of an overruling of precedent, not because I believe it warranted in the case of New York Times, but because a request to reconsider precedent at the proper level of court can provide another tool for an advocate boxed in by precedent, particularly when there are ready advocates for that position on the court.

 

[1] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] Id. at 271-72 (citation omitted; ellipses in orig.).

[3] Id. at 269.

[4] Cox v. Louisiana, 379 U.S. 536, 554 (1965):

[5] Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5 (2023) (Mem.) (citations omitted) (Thomas, J., concurring in the denial of cert.). Blankenship is only the latest of opinions written by the justice expressing this view.

[6] Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of cert.).

[7] Id. at 2427 (Gorsuch, J., dissenting from the denial of cert.).

Should We Still Avoid Contractions in Formal Legal Writing?

As summer begins in full, I have been reflecting on . . . grading 1L appellate briefs.  I know, this is a sickness.  However, this spring, I marked more papers with incredibly odd contraction use than in past years, so I am pondering “didn’t,” wasn’t,” and more as I spend the summer working on my teaching materials for fall.

Like many, I teach new law students to move past any text-style informal writing with emojis, missing capitalization, and the like.  I assign reading on apostrophes and Oxford commas, and we even work on punctuation in class.  By spring, most of my students are much more precise and careful in their writing, with one large exception:  contractions. 

Given the increase in contraction use by some commentators, like Bryan Garner, and courts too, I expect to see occasional contraction use by my students.  See generally Bryan Garner, The Elements of Legal Style 81-82 (Oxford Press 2001); https://www.plainlanguage.gov/guidelines/conversational/use-contractions/ (explaining why Garner and some others believe contractions can make writing more accessible and understandable).  Many authorities advocating for the use of contractions also advise caution, however.  As one commentator explained:  “To use an example from MLA, if you’re writing to a judge requesting leniency in sentencing, use of contractions could seem dismissive. Like everything in writing, audience and context are key.”  Chris R., When Are Contractions Too Informal?,

https://proofreadingpal.com/proofreading-pulse/writing-guides/when-should-i-use-contractions/(Sept. 1, 2017).

Following this context approach, I suggest my students be direct and clear, but respectful, in their formal writing and avoid contractions in court filings.  Then, we discuss using the “house style” of their future firms, offices, or supervisors for guidance on contractions in their inter-office writing.  I quote Chelsea Lee, who noted:  “Asking whether you should use contractions in formal academic writing is sort of like asking whether you should wear a bathing suit to a party—it depends on the type of party. Is it a pool party or a fancy dinner?”  Chelsea Lee, Contractions in Formal Writing: What's Allowed, What's Not, https://blog.apastyle.org/apastyle/2015/12/contractions-in-formal-writing-whats-allowed-whats-not.html (Dec. 10, 2015). 

This year, however, some of my students included so many contractions in their briefs, despite my PowerPoint slides and rubric expressly banning contractions in briefs, that the contractions interfered with readability.  These students also wrote briefs right at the word limit, and the briefs often read as if the writers made seemingly last-minute decisions to save words by inserting contractions.  

Of course, I deducted writing style credit from these briefs based on the lack of readability caused by using so many contractions.  Nonetheless, I would like to give a greater incentive to follow my contraction suggestions more closely next year.  I want to convince students that there is no advantage to using many contractions instead of carefully editing.  Accordingly, for students’ formal appellate brief assignment, I might count most contractions as two words for word limit purposes.

On the other hand, as more judges use contractions in their published opinions, perhaps it is (dare I say, it’s?) time for me to embrace contractions in briefs too.  In a quick Westlaw search, I found cases on many interesting ways attorneys have tried to circumvent word limits in briefs, but no published cases complaining only about contraction use.   

As you draft your next briefs and motions, I urge you to think about your contractions.  And if you are also spending a possibly-unhealthy amount of time this summer on contractions, please feel free to let me know.

Questions to Consider When Preparing for Oral Argument

Most attorneys understand that you must know the record and the law when preparing for an oral argument before an appellate court.  You must craft a concise, organized, and compelling argument and be able to distinguish unfavorable law and reconcile unfavorable facts.

However, this is often easier said than done. Below are some questions that may help you prepare for oral argument.

    1.    How would you write the opinion?

If an appellate court asked you this question, what would you say?

You must be prepared to explain the reasoning underlying your position. For example, why is your position more consistent with the text of a constitution or statute? Why is your argument consistent with the court’s precedent? Have you considered unfavorable facts and law, and can explain why they do not affect the outcome you seek? How do you address counterarguments and why do those arguments lack merit?

Considering how you would write the opinion in your favor will help to organize your argument, explain your reasoning, and address weaknesses in your position.

    2.    How would you finish this sentence?

You should be able to state in one sentence why you should win your case.

For example, if you argue that imposing a sentence of life imprisonment without parole on a juvenile violates the Eighth Amendment. Imagine if an appellate court asked you to complete this sentence: “Imposing a sentence of life imprisonment without parole on a juvenile convicted of first-degree murder violates the Eighth Amendment because                                     .”

What would you say?

If you cannot state why you should win in one sentence, you will lack the clarity and conviction that excellent appellate advocates present in their arguments.  Consider the following responses to the question above:

Advocate: The Eighth Amendment, as this court is aware, protects against cruel and unusual punishment, and that determination depends on whether a punishment is consistent with evolving standards of decency that mark the progress of a maturing society. When applying this standard, this court should be mindful that circumstances today are far different from those that existed when the Eighth Amendment was adopted. When you consider how standards have changed, it is evident that executing juveniles, who cannot reason like adults, is cruel and unusual because it imposes on them a penalty that can only be justified for adults. The Eighth Amendment should not be interpreted to support unreasonable punishments and contemporary standards of decency counsel against such a draconian remedy.

This response is utter nonsense. It says nothing substantive whatsoever and shows that the advocate cannot concisely articulate why imposing a sentence of life imprisonment without parole would violate the Eighth Amendment.

Advocate: Imposing a sentence of life imprisonment without parole on juveniles convicted of first-degree murder violates the Eighth Amendment because such a sentence fails to consider that juveniles’ brains are not fully developed, disregards the principle that such sentences should only be imposed on the most culpable offenders, and ignores the well-settled rule that sentences must be proportionate to the severity of the offense.

 This response is not perfect, but it clarifies your argument and provides the court with three concise and concrete reasons that explain why imposing a sentence of life without parole on a juvenile violates the Eighth Amendment. That is far more persuasive and likely to garner support from the court.

    3.    Why shouldn’t the Court decide the case on grounds other than the ones you support?

Be sure to anticipate the alternative grounds upon which an appellate court might rule in your favor and be prepared to address them in depth. In so doing, do not argue that those grounds are insufficient, or that your position is superior. Rather, explain why the court’s reasoning is an equally justifiable way to support your position. Consider the following examples:

Court: Counselor, you argue that laws prohibiting abortion violate the right to privacy that is encompassed within the liberty protected by the Fourteenth Amendment’s Due Process Clause. But can’t you argue that such prohibitions violate the Equal Protection Clause because they place a unique and disparate burden on women that prohibits them from participating equally in society?

Advocate: That may be true, but our position, which is consistent with the Court’s precedent, is that prohibitions on abortion violate the right to privacy encompassed within the liberty guaranteed under the Fourth Amendment and that the court should rule on this basis.

   This response is terrible. That response tells the court that you reject the alternative reasoning that it may use to rule in your favor, and only want the court to rule based on the argument you presented. Instead of expanding the grounds on which the court could rule in your favor, this attorney just narrowed them and based his argument on a ground that the court did not even mention.

Consider this response:

Advocate: Certainly, the equal protection clause supports invalidating laws prohibiting abortion. As this court has recognized, such laws impose an undue and disparate burden on women and prohibit women from participating equally in the social and economic life of our society. Indeed, abortion prohibitions enshrine into law the very inequality and disparate impact that the equal protection clause prohibits. As such, these prohibitions violate the equal protection clause and, as we have argued, the liberty interest protected by the Fourteenth Amendment and this court’s jurisprudence.

This response is more effective. It acknowledges the court’s view that laws prohibiting abortion violate the equal protection clause, and it affirms that the equal protection clause could be a basis upon which to invalidate such bans while reinforcing the advocate’s original position that these bans violate the liberty interest protected under the Fourteenth Amendment’s Due Process Clause.

    4.    Why can’t the court rule on a narrower ground?

An appellate court may suggest narrower grounds to support a ruling in your favor. If it does, you should be prepared to support and justify those grounds and thus expand the bases upon which the court can rule in your favor. Consider the following example of a lawyer who is advocating that assisted suicide is a right protected under the Fourteenth Amendment’s Due Process Clause.

Court: Counselor, you acknowledge that your client is terminally ill, having suffered from Stage Four glioblastoma for approximately one year. Doesn’t your argument support a ruling that the right to assisted suicide only exists where individuals seeking to end their lives have terminal illnesses, and thus is not a license for anyone to end their lives simply because they wish to do so.

Attorney: Well, we argue that the right to assisted suicide should not be limited to a specific class of persons. Instead, this is a right that the liberty interests under the Fourteenth Amendment, and this Court’s jurisprudence, protect with qualification.

     This response is awful. The court is telling the lawyer that it wants to rule in his or her favor, but not on grounds as broad as the lawyer is advocating. The lawyer should take the hint and acknowledge that ruling on narrower grounds is justified because it supports a ruling in favor of the lawyer’s client and is a step toward recognizing a right to assisted suicide for all citizens in the future.

Consider this response:

Advocate: The liberty interest protected by the Fourteenth Amendment undoubtedly protects the right to assisted suicide for terminally ill individuals.  This right is based on the fundamental right to privacy and liberty recognized by this court and reflects the principle that if liberty means anything, it means giving terminally ill individuals the right to determine when to choose that they no longer wish to suffer.

   This response is more effective because the attorney pivoted from an absolutist position regarding the right to assisted suicide to a position that is more palatable to the court.  In so doing, the attorney enhanced his likelihood of succeeding and achieving a favorable result for the attorney’s client.

    5.    Will your position lead to unjust outcomes in future cases?

Good appellate advocates recognize that an appellate court does not care primarily about their client or the outcome of the case. Rather, the court cares about how its ruling will affect future cases, and whether such a ruling will lead to unjust outcomes in future cases. Accordingly, attorneys should advocate for a ruling in their favor on the narrowest grounds possible; doing so will make it less likely that such a ruling will lead to concerns about unjust outcomes in future cases.

Consider the following example, which involves a case where an attorney argues that life imprisonment without parole can be imposed on juveniles who commit first-degree murder.

Court: Counselor, if we adopt your rule, a ten or eleven-year-old child could receive a sentence of life imprisonment without the possibility of parole. Does that seem like a just result?

Attorney: Ten and eleven-year-old children are minors and, if they commit the heinous act of first-degree murder, nothing in the Constitution prohibits a sentence of imprisonment of life without parole. Indeed, such a sentence may be necessary to protect society and ensure public safety.

      This response is about as bad as it gets. The court is telling the advocate that it is not comfortable with adopting a categorical rule that all minors can be sentenced to life imprisonment without the possibility of parole. Knowing this, the attorney should immediately adjust his or her position and, to accommodate this concern, narrow the grounds upon which the attorney can achieve a favorable ruling. This attorney failed to do that.

Consider this response:

Advocate: Our position is not that any minor, regardless of age or circumstance, can be subject to a sentence of life imprisonment without parole. Rather, we argue that a categorical rule prohibiting the imposition of life imprisonment without parole of any minor, regardless of the severity of the crime, would allow some minors who engage in heinous acts of violence to escape responsibility for these acts. Of course, the court could rule in a future case that sentencing a ten or eleven-year-old minor to life imprisonment without parole violates the Constitution. Thus, a ruling in our favor does not prevent this court from addressing those concerns.

    This response is better. The attorney effectively addressed the court’s concern and explained that a ruling in the attorney’s favor would not prevent it from ruling that sentences of life imprisonment without parole for ten and eleven-year-old offenders violated the Constitution.

    6.    How does your argument impact the Court’s precedent?

In most instances, arguments that require a significant departure from a court’s precedent are less likely to succeed. Courts and litigants understandably value predictability and stability in the law, and arguments that would require a major departure from, or overruling of, precedent will be met with skepticism, particularly given the doctrine of stare decisis. Although there are exceptions, the best approach is to persuade the court that your argument (and the remedy you seek) is consistent with the court’s precedent or, at the very least, represents a logical expansion of, or imposes proper limits upon, such precedent.

***

When preparing for an oral argument, put yourself in the shoes of the appellate court judges. They want to reach a fair outcome that the facts and law support. If you can see your case from their perspective, and answer effectively the questions raised above, you will maximize your chances for success.

Neurodiversity and Legal Advocacy: Dyslexia

This is part two of my continuing series of posts about neurodiversity and legal advocacy. In today's post, I'll talk about my own neurodiversity - dyslexia. While each type of neurodiversity presents differently, I hope some of my personal experience and research can help you as either a teacher, partner, or mentor when you encounter dyslexic students or associates. If you are dyslexic yourself, the following may help you process your differences and see how they can be turned into strengths.

Studies estimate that from 10-20% of the population has dyslexia. Dyslexia involves a series of genetic, neurological differences that result in a different way of seeing the world. Given the prevalence of dyslexia, it is likely that you have taught or work with dyslexic thinkers.

1.    Strengths

Although traditionally seen as a disability, Richard Branson considers dyslexia to be his superpower, and several companies now hire dyslexic thinkers purposefully because of their strengths. Indeed, LinkedIn now includes "dyslexic thinking" as a skill. Those strengths include:

    A.     Big Picture Thinking

Most dyslexics see themselves as "big picture thinkers." They see trends and patterns in data more quickly than neurotypicals. This permits them to see how things connect in complex systems, categorize broadly based on similarities, and, conversely, quickly spot things that are out of place. The GCHQ, a British intelligence and security agency, employs over 100 dyslexic thinkers to assist in their analysis for this reason.

    B.     Problem Solving

Dyslexics tend to score very high in reasoning skills. Their big-picture view of the world helps them understand patterns and systems quickly, and they can then simplify those complex systems. They are logical and strategic thinkers. In the legal world, this means dyslexics may be able to see legal solutions based on prior precedent a bit more clearly -- once they understand the purpose and policy behind prior precedent, they can extrapolate it to newer areas quickly.

    C.     Creativity

Picasso, Pollack, Spielberg, Einstein and Roald Dahl were all dyslexic thinkers. That doesn't mean all dyslexics are artists, but most do see the world a bit differently, and process and explore it differently as well.

    D.     Empathy

Whether a function of their "big picture" thinking, their experiences in coping with difficulties in reading and writing, or both, dyslexic thinkers score high in empathy. They typically sense, understand, and respond to other people's feelings more quickly and accurately than neurotypical people.

    E.     Spatial Reasoning

When dyslexic children learn to read, the right hemisphere of their brain lights up on MRIs. Neurotypical children usually do not have the same response. This is hypothesized to be because the dyslexic brain tends to use spatial reasoning for everything, including reading. Rather than just hearing and assigning sounds to letters, the dyslexic child seems to create patterns and "shapes" for each word. This spatial reasoning persists in dyslexic thinking, with dyslexics often scoring highly on spatial reasoning and 3D imagination. This may be why they can be strong theoretical mathematicians, but still make sequential errors (they see the forests but miss the trees).

    F.     Communication

When these strengths are combined, they can make dyslexics excellent communicators. Big-picture thinking, empathy, and creativity mean that dyslexics can be strong narrative story-tellers. And Walter Fisher's narrative paradigm of communications suggests that this makes them more persuasive.

2.     Challenges and coping mechanisms

Of course, being dyslexic isn't always wonderful. Dyslexia was categorized as a disability for a reason - it carries with it significant challenges. People with dyslexia are sometimes described as being neurologically "spiky," with scores both higher and lower than the neurotypical (as that name would suggest). While building on the strengths listed above, the dyslexic thinker needs to recognize those challenges. Fortunately, there are numerous aids in helping them do so.

    A.     Organization.

Big picture thinkers need to learn to break things down into steps. While it is useful to see the forest, the trees still matter in the law. Brian Garner's "madman, architect, carpenter, judge" process is extremely helpful to me. I love the exploration of research (another dyslexic trait) but feel constrained by early organization. Using Garner's process, I naturally compose my big picture argument, use the law I find to create structure, then build and rebuild the argument.

    B.     Spelling and Grammar.

Spelling and grammar are most dyslexic thinkers' kryptonite. Yet most rubrics weigh them heavily, both because they matter and because they are easy to grade. This frankly inequitable bias has to be addressed, because it will impact them professionally. But it can't paralyze the writer.

I once had the privilege of spending an evening talking with Ray Bradbury. His primary writing advice? "Write the damn thing!" Dyslexics need to get a draft on paper without fear of failure. That may mean speech to text software. It may mean cut and pasting blocks of text from cases first, then revising later. But getting something on the page is what matters.

Then revise, revise, revise. Word has learning tools that are thoroughly explored in the website listed below. AI could also be used to help. But the main emphasis for a dyslexic writer should be that good writing is rewriting, even for neurotypical writers, but especially for dyslexic writers. A second set of eyes is also highly recommended. My wife, a history professor, reads almost everything I write. Including these blogs. If you aren't blessed with a wife with good grammar skills and the patience of Job, you probably have a paralegal, legal secretary, or co-worker who does.

    C.     Instructions.

Because dyslexics are big-picture thinkers, and because they often have some decoding lag-time, giving them instructions can be tricky. Rather than just telling students to "write a memo," the dyslexic student may need the necessary steps broken down for them. And they benefit greatly from iterative learning - letting them edit and rewrite assignments is a huge boost both in learning and emotional impact.

    D.    Short-Term and Working Memory.

Several studies have shown that dyslexic thinkers can have difficulty with both short-term and working memory. Working memory is a subset of short-term memory that involves remembering sequential steps, planning, and behavioral related decision making. We forget our keys and people's names and phone numbers with alarming regularity.

One of my coping mechanisms is to write things down immediately. If I am researching and have a thought, I write it down quickly. If I have a text or notification come through, it will probably disappear if I do not. I do the same at oral argument - I furiously write down questions and statements that I need to address and draw arrows and write numbers to organize them. Once I have done that, I am locked in, because I can visualize the new argument.

There are several strategies to look into: color association, chunking, visualization, and mnemonics are all useful. As is technology. Calendaring and note apps are a part of everyday life for me and most dyslexics.

    E.     Managing Emotional Impact.

Being a dyslexic student, or advocate, isn't easy. Issues with memory, organization, and difficulty grasping instructions quickly are all anxiety-inducing. Reading -- a huge part of our day -- is draining because of the additional decoding that must take place. Text-to-speech readers may be helpful. Extra time accommodations aren't necessarily an advantage to such students, so much as a way to help level the field. But making sure their strengths are valued is also key. Hopefully, a strength-based approach to your interactions with these students will help them see the value in their differences.

3.     Conclusion

Dyslexia makes me a better advocate, but only because I've learned to capitalize on its strengths and cope with its weaknesses. Hopefully you can help your students, associates, or yourself do the same by following some of these tips.

 

Further Reading

Made by Dyslexia - Website with tests, instructional videos, and teaching tools

Taylor, H and Vestergaard MD: 'Developmental Dyslexia: Disorder or Specialization in Exploration?' Frontiers in Psychology (June 2022).

 

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

A Font by Any Other Name Does Not Read the Same, Redux

On May 19^th, my post on this blog covered the different requirements and suggestions that federal circuit courts have for the font used in any brief. A Font by Any Other Name Does Not Read the Same.

Now, the Seventh Circuit has weighed in on the subject in a new opinion written by Judge Easterbrook. The underlying dispute concerned a business lease. However, what made the opinion newsworthy was its discussion of fonts. The plaintiff’s lawyer chose to write his opposition to a motion to dismiss using “Bernhard Modern, a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show,” according to the court. AsymaDesign, LLC v. CBL & Assocs. Mgmt., Inc., No. 23-2495, 2024 WL 2813827, at *2 (7th Cir. June 3, 2024). If you assumed that comment telegraphs the court’s attitude about its use, you stand on solid ground.

The opinion directs practitioners to review the court’s Handbook, available at https://www.ca7.uscourts.gov/rules-procedures/Hand-book.pdf, for “important advice about typography” and reminds attorneys that they should give due regard for the “sore eyes of judges who must read copious legal materials.” Id. The Handbook, the court reminds everyone, suggests that lawyers select “type-faces (often called fonts) suited for use in books and other long-form presentations” and choose the “most legible face available to you.” Id. It further states that “[d]isplay faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages,” “make understanding harder,” and is not exactly conducive “to easy reading of long passages.” Id.

It concludes with the fervent “hope that Bernhard Modern has made its last appearance in an appellate brief.” Id.

Two days later, an in-circuit district court cited that passage to register its complaint about a brief that omitted page numbers. Kika C. v. O'Malley, No. 22 C 1502, 2024 WL 2873557, at *3 n.6 (N.D. Ill. June 5, 2024).

On Using ChatGPT for Statutory Interpretation

Judge Kevin Newsom of the Eleventh Circuit Court of Appeals recently wrote a concurring opinion in an insurance case involving an issue of statutory interpretation.[i]  Specifically, the question was whether a landowner’s in-ground trampoline constituted “landscaping” under a policy that provided him coverage for negligence arising from “landscaping” work but provided no definition of “landscaping.”[ii]

After reviewing numerous dictionary definitions of landscaping and finding all of them leaving “a little something to be desired” because none of them fully captured his own understanding of the term, Judge Newsom confessed to having consulted various generative AI tools (out of pure academic curiosity) for a definition.[iii]  While the case was ultimately resolved on a different question, Judge Newsom chose to use his concurring opinion as a platform to discuss the potential use of generative AI for statutory interpretation, specifically when the issue involves discerning the plain and ordinary meaning of a word.[iv]

He concluded that large language models (LLMs), such as ChatGPT, might be useful in the interpretation of legal texts.[v]  He followed his conclusion with a list of benefits and risks of doing so.

Judge Newsom identified the benefits as follows: 

(1) “LLMs train on ordinary-language inputs,” thereby reflecting the “common speech of common people”;[vi]

(2) “LLMs can ‘understand’ context,” which allows them to “discern the difference—and distinguish—between the flying-mammal ‘bat’ . . . and the wooden ‘bat’” used in baseball;[vii]

(3) “LLMs are accessible,” which can both “democratiz[e] the interpretive enterprise” and provide “an inexpensive research tool”;[viii]

(4) “LLM research is relatively transparent” because we know they are trained on “tons and tons of internet data” and because they provide the opportunity for judges to “show their work” by disclosing “both the queries put to the LLMs . . . and the models’ answer”;[ix] and

(5) “LLMs hold advantages over other empirical interpretive methods,” such as conducting broad surveys and corpus linguistics.[x]

Judge Newsom also recognized the following risks: 

(1) “LLMs can ‘hallucinate’”;[xi]

(2) “LLMs don’t capture offline speech, and thus might not fully account for underrepresented populations’ usages”;[xii]

(3) “Lawyers, judges, and would-be litigants might try to manipulate LLMs” by reverse-engineering a preferred answer;[xiii] and

(4) “Reliance on LLMs will lead us into dystopia” where “‘robo judges’ algorithmically resolv[e] human disputes.”[xiv]

Though Judge Newsom found each of the identified risks to be either non-fatal or easily mitigated, I’m not sure he fully appreciated the potential that the LLMs might fail to account for word usage among underrepresented populations.  The inherent bias baked into generative AI is well documented.[xv]  One study in particular “revealed systematic gender and racial biases in [multiple] AI generators against women and African Americans. The study also uncovered more nuanced biases or prejudices in the portrayal of emotions and appearances.”[xvi]

If a benefit of using LLMs to discern ordinary meaning is their ability to “democratiz[e] the interpretive enterprise,” then we should also be giving more consideration to websites such as Urban Dictionary and Wikipedia.

But the primary concern with a judge using any of these sources to discern “ordinary meaning” is that, in doing so, the judge becomes an advocate by both proposing and relying on a new definition not previously advanced or supported by any party.  Admittedly, the same concern is true when judges consult dictionaries for definitions, but I’ve previously identified my concerns with that approach.

Despite the drawbacks of relying on LLMs and other unconventional sources, Judge Newsom makes some very good points about their potential utility. Perhaps the best approach lies somewhere in between complete reliance and absolute prohibition.  Perhaps we should create standardized rules regarding the appropriate usage (by courts and litigants alike) of readily accessible, crowd-sourced information, such as LLMs, Urban Dictionary, and Wikipedia.[xvii]

And we could throw in dictionaries as well for good measure.

 

[i] Snell v. United Spec. Ins. Co., No. 22-12581, slip op. at 1 (11th Cir. May 28, 2024) (Newsom, J., concurring), https://media.ca11.uscourts.gov/opinions/pub/files/202212581.pdf#page=25 (last accessed June 10, 2024).

[ii] Id. at 1-2.

[iii] Id. at 5-6, 8.

[iv] Id. at 4.

[v] Id. at 10.

[vi] Id. at 11.

[vii] Id. at 14-15.

[viii] Id. at 15.

[ix] Id. at 16, 18, 19.

[x] Id. at 19-20.

[xi] Id. at 21.

[xii] Id. at 22.

[xiii] Id. at 23.

[xiv] Id. at 24-25.

[xv] Nettrice Gaskins, The Boy on the Tricycle: Bias in Generative AI (May 1, 2024), available at: https://nettricegaskins.medium.com/the-boy-on-the-tricycle-bias-in-generative-ai-d0fd050121ec#:~:text=While%20generative%20AI%20has%20numerous,against%20women%20and%20African%20Americans (last accessed June 10, 2024).

[xvi] Id.

[xvii] See Leslie Kaufman, For the Word on the Street, Courts Call Up an Online Witness, New York Times (May 20, 2013), available at: https://www.nytimes.com/2013/05/21/business/media/urban-dictionary-finds-a-place-in-the-courtroom.html.

Will Former President Donald Trump’s Conviction Be Overturned?

On May 30, 2024, a Manhattan jury convicted former President Donald Trump of falsifying business records with the intent to defraud voters in the 2020 election. The conviction involves, among other things, a non-disclosure agreement that adult film actress Stormy Daniels signed in 2016, which prohibited Daniels from discussing the alleged sexual conduct that, in 2006, occurred with her and Trump.

After the sentencing hearing, which is scheduled for July 11, 2024, Trump’s attorneys will file an appeal seeking to overturn the decision. Below is a brief discussion of the issues that Trump’s attorneys will likely raise on appeal, and a prediction of whether they will be successful.

    1.    The failure to remove Judge Merchan from the case.

Judge Merchan allegedly donated $15 to President Joe Biden’s 2016 election campaign and $10 to an organization called Stop Republicans. A state ethics panel subsequently cautioned Merchan against making such contributions to avoid the appearance of bias. Also, Judge Merchan’s daughter, Loren, works for Authentic Campaigns, a political marketing agency that serves Democratic political candidates, and for a time, Loren was Authentic’s president and Chief Operating Officer. Loren also allegedly displayed an image of President Trump behind bars on her Twitter page, which was later removed. Based on these facts, Trump’s attorneys requested that Judge Merchan be removed from the case. That request was denied.

Perhaps Judge Merchan should have recused himself, but whether he was legally required to do so is a different matter. Judge Merchan donated a small amount to Biden’s campaign eight years ago. Also, Loren’s job at Authentic does not mean that Judge Merchan, because of his daughter’s political activities, will be biased in the trial or have an actual or apparent conflict of interest.

            Prediction: Unsuccessful.

    2.    The failure to change venue.

To many legal scholars and commentators, President Trump faced an uphill battle in this trial because Manhattan is a decidedly liberal city where over eighty-five percent of residents voted for President Biden in 2020, and where a bias toward Trump exists. Indeed, when jury selection began, half of those called for jury duty immediately stated that they could not be impartial in their deliberations. And of the twelve jurors selected, it is highly likely that the majority voted for Biden and harbored negative feelings toward Trump. Given these facts, Trump’s attorneys argued for a venue change, which Judge Merchan denied.

However, the law did not likely require a venue change. To hold that the political orientations of the jurors justify a change in venue in every or most cases would upend the jury system and make criminal trials incredibly inefficient.  Every criminal defendant could argue that the political demographics of a county, city, or state justified a venue change. Moreover, a venue change would not guarantee that existing biases in another venue would be eliminated; also, jurors can certainly assess the facts and evidence objectively despite their political affiliations.  Simply put, it is quite speculative to assume that jurors, who take an oath to be impartial and base their decision on the facts and evidence, would yield to and convict or acquit based upon their political biases. One should have more faith in the citizens of this country.

            Prediction: Unsuccessful.

    3.    Judge Merchan’s decision to allow Stormy Daniels’ testimony.

At the trial, Stormy Daniels testified about a sexual encounter that she had with President Trump in 2006 and, in that testimony, she provided graphic details about the encounter that did not relate to any of the elements of the charges against Trump. Daniels’ testimony also contradicted her prior statements, where she denied that such an encounter ever occurred. Based on the explicit sexual details that Daniels provided in her testimony, the defense will argue that this testimony was unduly prejudicial.

But during the opening statements President Trump’s lawyer, Todd Blanche, told the jury that Trump never had a sexual encounter with Daniels, thus justifying the prosecution’s decision to call Daniels to refute this assertion, which was the alleged motive for the non-disclosure agreement. However, the graphic details to which Daniels testified, such as what President Trump was wearing, how long their sexual encounter lasted, and what sexual position he preferred (Judge Merchan sustained an objection to this part of the testimony), were unnecessary. Surprisingly, the defense did not object to certain portions of this graphic testimony, which prompted Judge Merchan to criticize the defense for not making such objections.

Regardless, as stated above, because Trump specifically denied having a sexual encounter with Daniels, the prosecution was justified in calling Daniels to refute this statement. The question on appeal, therefore, will turn on whether the lurid details that Daniels provided–and which were irrelevant to the prosecution’s case–were sufficiently prejudicial to deprive President Trump of a fair trial.

The answer is, most likely, no. The appellate courts will decide that this was a harmless error.

            Prediction: Unsuccessful.

    4.    Judge Merchan’s evidentiary rulings.

Trump’s attorneys will argue that Judge Merchan’s evidentiary rulings reflected a pro-prosecution bias throughout the trial and compromised President Trump’s right to a fair trial.

Some of the objections that Judge Merchan sustained for the prosecution were questionable. For example, the way Judge Merchan limited Robert Costello’s testimony–not to mention his hostile demeanor toward Costello, calling him contemptuous and threatening to strike his testimony–was concerning. Of course, Costello did himself no favors by acting disrespectfully when Judge Merchan sustained one of the prosecution’s objections. You would think that a lawyer of Costello’s caliber would refrain from such conduct, which severely compromised his credibility.

Additionally, Judge Merchan also restricted the testimony of former Federal Election Commission Chairman Brad Smith, who would have testified that Trump’s payments to Cohen did not constitute a campaign finance violation.  In fact, the restrictions were so significant that the defense decided not to call Smith, Furthermore, Judge Merchan allowed the prosecution to tell the jury that Cohen had pleaded guilty to a campaign finance violation – which was among the charges that Trump faced.[1] When Judge Merchan allowed this, he should have permitted Brad Smith’s testimony to refute the prosecution’s argument. Judge Merchan’s failure to do so is very problematic because it enabled the jury to think, “If Cohen pleaded guilty to a campaign finance violation, then Trump must be guilty too.”

Also, Judge Merchan’s decision regarding the permissible scope of cross-examination if Trump testified was troubling. Specifically, Judge Merchan ruled that the prosecution could ask Trump about the verdict finding him liable for defaming E. Jean Carroll, about the four-hundred-and-fifty-four-million-dollar verdict that Judge Arthur Engeron imposed in President Trump’s civil fraud trial, and about Trump’s numerous violations of Judge Merchan’s gag order. None of these questions related to the charges facing Trump, and allowing the prosecution to ask such questions was more prejudicial than probative. And these rulings played a significant role in Trump’s decision not to testify.

Judge Merchan’s decision regarding the scope of cross-examination may be problematic given the Court of Appeals of New York’s recent decision in People v. Weinstein, where the Court, by a 4-3 decision reversed the conviction against Harvey Weinstein on sexual assault charges. In that case, the Court of Appeals held that the trial court improperly allowed several women to testify that Weinstein had sexually assaulted them, even though Weinstein was not on trial for assaulting those women. As the majority stated, “[u]nder our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”[2]

To be clear, this is not to say that Judge Merchan was consciously biased against President Trump. It is to say that some of his evidentiary rulings, including when considering the Court of Appeals’ decision in Weinstein, might constitute reversible error.

            Prediction: Possibly successful.

    5.     Whether Michael Cohen’s testimony should not have been given any weight by the jury, thus justifying a directed verdict for President Trump.

Michael Cohen was not a credible witness.  He lied to Congress.  He pleaded guilty to tax evasion and bank fraud (which were unrelated to Trump), which led to his disbarment and incarceration. He lied to a federal court. He called a deceased federal judge corrupt. He secretly recorded President Trump–his client at the time–during a meeting where they discussed the payment to Daniels. He stole thousands from the Trump Organization. And he lied to or omitted material information about an October phone call with Trump’s bodyguard, Keith Schiller. Also, during his testimony, Cohen blamed his legal troubles on being “knee-deep in the cult” of President Trump, showing that he lacked any sense of personal accountability. Lest there be any doubt about Cohen’s character, watch his belligerent rants online, where he states how much he wants Trump to go to prison while wearing a shirt depicting Trump behind bars.

Cohen had about as much credibility as those claiming that the government faked the moon landing or that Elvis faked his death.

Incredibly, however, the jury believed at least some of Cohen’s testimony because Cohen was the only witness who could testify to, among other things, Trump’s specific intent to defraud voters and promote or prevent the election of any person to public office.[3]  Given that the trial occurred in Manhattan and that at least some jurors despised Trump, this should not be surprising. Moreover, although some commentators made much of the fact that there were two lawyers on the jury, this did not bode well for President Trump. One attorney, who moved to New York from Oregon, has lived in Chelsea for five years, which is notoriously liberal.  The other lawyer worked as a civil litigator at a firm in New York City, and firms in New York City are overwhelmingly liberal.

Regardless, is the jury’s reliance on Cohen’s testimony a basis to reverse the decision? No. Jurors are given wide latitude to credit or discredit the testimony of a witness, and an appellate court will not second-guess the jury’s fact-finding.

            Prediction: Unsuccessful.

    6.    The charge that Trump falsified business records.

Based on the evidence, the jury concluded that President Trump falsified business records. The facts suggested that after Stormy Daniels threatened to go public with her story, Cohen established a corporation, from which he paid $130,000 to Daniels after obtaining a home equity loan. Trump subsequently reimbursed Cohen for the money that he paid to Daniels.

President Trump’s accountant designated these payments as “legal expenses,” using a drop-down menu on a computer to make this designation. Why this designation was improper given that Trump made the reimbursement in connection with a legally enforceable non-disclosure agreement is unclear. And one can certainly question precisely how President Trump “caused” the records to be falsified—if they even constituted falsification. What’s more, the entries into the business records were made after the 2016 election. Thus, how can President Trump be found guilty of falsifying business records to promote or prevent the election of a candidate when the election is already over?

The appellate courts, however, will probably not focus on this issue because it will likely defer to the jury’s fact-finding.   

            Prediction: Unsuccessful.

    7.    Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

Judge Merchan allowed the jury to reach a non-unanimous verdict on the underlying crime(s) that elevated a misdemeanor barred by the statute of limitations into a felony.

To best explain this, consider the following examples: The crime of armed robbery typically requires a person to: (1) take the property of another; (2) without their consent; and (3) with the use of force. To obtain a conviction, all three elements must be satisfied. But the jury need not be unanimous on, for example, how the defendant used force. Some might conclude that the defendant used a gun, while others may conclude that the defendant used a knife. Unanimity on the underlying means is unnecessary if all jurors agree that the defendant used force because the use of force is the element that must be satisfied. Likewise, first-degree murder requires that the defendant: (1) intentionally; (2) kill another person. To convict, the jury must only agree that the defendant acted intentionally to cause the death of another person. It need not agree, however, on whether the defendant killed a person with a gun, a knife, or an ax.

The New York election law is different. It prohibits a candidate from: (1) promoting or preventing the election of a candidate; (2) by unlawful means. Unlike the robbery or murder examples, which specify the conduct needed to satisfy each element (e.g., the use of force), the New York law, in using the vague term “unlawful means,” does not delineate what conduct constitutes “unlawful means.” As such, the “unlawful means” element arguably permits a jury to choose among numerous crimes to convict the defendant without agreeing unanimously that the elements of any single crime were satisfied.

In President Trump’s trial, this is precisely what occurred. The prosecution stated in its closing argument that in deciding whether Trump was guilty of a second underlying crime, the jury could conclude that Trump violated campaign finance law, federal tax law, or engaged in additional falsification of business records. To make matters worse, Judge Merchan instructed the jury that they must only reach unanimity on which underlying crime was committed—not on whether the elements of any underlying crime were satisfied.[4]

In so doing, Judge Merchan permitted the jurors to convict Trump without unanimous agreement that the elements of any single crime were satisfied. Thus, if four jurors agreed that Trump was guilty of a federal campaign finance violation, four agreed that he was guilty of violating federal tax law, and four agreed that he was guilty of falsifying additional business records, Trump could be convicted. In fact, to date, we still do not know what underlying crime(s) the jury found Trump to have committed. This instruction arguably violated the United States Supreme Court’s decisions in Ramos v. Louisiana and Richardson v. United States.[5]

That instruction was a reversible error. And it may not be the only one.

By allowing the prosecution to proceed on an indictment that never specified the underlying crime that elevated the misdemeanor (falsification of business records) to a felony, the prosecution deprived President Trump of his Sixth Amendment right to know the nature of the charges that he was facing. That is precisely why, to this day, we have no idea what underlying crime the jurors reached an agreement upon.

That is the point – and the problem.

Additionally, the law upon which Trump was convicted–N.Y. Election Law 17-152–should be deemed unconstitutional because the term “unlawful means" is vague and essentially permits a jury to convict a defendant even if they do not agree on the underlying crime constituting the "unlawful means," and even if they do not agree unanimously that the underlying elements of any single crime have been satisfied.  

            Prediction: Successful.

***

One must wonder why these charges were ever brought. Convicting a former and possibly future president based on conduct occurring eighteen years ago, which involved an alleged “falsification of business records” that occurred eight years ago, is concerning. It suggests that the legal system is being weaponized against a political opponent. After all, if President Biden had engaged in this conduct, do you think that Manhattan District Attorney Alvin Bragg would have brought these charges? Of course not.

That, again, is the point – and the problem.[6]

Trump’s conviction will be overturned.

 

[1] Specifically, during its opening statement, the prosecution told the jury that “Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.” 

[2] See Peter Sterne, Why Did New York’s Highest Court Overturn Harvey Weinstein’s Conviction? (April 29, 2024), available at: Why did New York’s highest court overturn Harvey Weinstein’s conviction? - City & State New York (cityandstateny.com)

[3] See N.Y. Election Law 17-152.

[4] Consider by analogy the following law: “It shall be unlawful to physically harm a person through unlawful means.” This would allow a jury to convict a defendant even if four jurors agreed that the harm occurred through kidnapping, four others agreed that the harm occurred through assault, and four others agreed that the harm occurred through battery. In such a circumstance, the jurors would not agree unanimously that the defendant’s conduct satisfied the elements of any single crime. That should prohibit a conviction.

[5] 590 U.S. 83 (2020); 526 U.S. 813 (1999).

[6] Recently, Judge Merchan notified the parties that, on May 29, 2024, a cousin of one of the jurors allegedly posted on a social media website stating as follows: "My cousin is a juror and says Trump is getting convicted! Thank you folks for all your hard work!!!!" See Ella Lee, Trump Hush Money Judge Flags Facebook User Claiming Early Knowledge of the Verdict (May 29, 2024), available at: Trump hush money judge flags Facebook user claiming early knowledge of verdict (thehill.com)

 

New Rules on Appealing Factual Findings under the Clear-Evidence Rule

Advocates usually face tough sledding if their appeal merely disputes factual findings. Those appeals confront the “clear-evidence” standard, a demanding test that requires the appellate court to find that the findings are not plausible given the evidentiary record. Appellate courts assume that trial courts have greater expertise in evaluating the facts because experiencing the presentation of the case in the living courtroom allows a judge to assess credibility, among other things, that a cold written record cannot convey.

In Cooper v. Harris (2017), the Supreme Court, in an opinion written by Justice Kagan, applied that rubric to uphold a three-judge panel’s decision that invalidated a North Carolina congressional redistricting plan under the “deferential standard of review” that applies to factual findings. The Court held that a “plaintiff may make the required showing [to demonstrate that race was the predominant factor in drawing district lines] through ‘direct evidence’ of legislative intent, ‘circumstantial evidence of a district’s shape and demographics,’ or a mix of both.” The decision distinguished an earlier favorable review of one of the same districts in  Easley v. Cromartie (2001), because the majority read that decision to involve a particularly week evidentiary record of racial considerations that could only be overcome if the plaintiffs had offered an alternative map. That map would have to demonstrate that the legislators’ political goal could have been achieved without regard to race. In Cooper, the Court held sufficient strong evidence, including direct evidence, existed so that an alternate map was unnecessary.

Justice Thomas concurred, writing that the analysis in Cooper “represents a welcome course correction to this Court’s application of the clear-error standard.”

Justice Alito wrote the dissent. He asserted that the majority had treated the earlier precedent “like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash.” He labeled the absence of an alternative map “a critical factor in our analysis” in Cromartie and asserted its absence in the Cooper record required that North Carolina’s new map be upheld.

What a difference a few years and a few justices make! On May 23, the Supreme Court reinstated a South Carolina congressional map that the district court had found to be the product of racial gerrymandering. This time, the writers switched sides. Justice Alito wrote the majority opinion, Justice Thomas concurred with the new majority, and Justice Kagan authored the dissent. The majority’s treatment of the clear-evidence standard suggests a new wrinkle for the clear-evidence rule that likely affects a wide swath of cases.

In Alexander v. South Carolina State Conference of the NAACP, No. 22-807, the Court held that politics permissibly informed the map-drawing task even if the political motivation correlated with treating race as a predominant factor in the maps. Because the district court did not disentangle race and politics, the Court said, its findings of fact were clearly erroneous. To prevail on the racial-gerrymandering issue, the Court required a plaintiff to rule out the competing explanation of politics. It insisted, as it asserted Cromartie required, that a plaintiff would have to draw a partisan map consistent with the legislature’s intent to favor the dominant political party but with greater racial balance. In other words, the plaintiff had to do a better job of creating the same partisan advantage without evidencing any racial discrimination, a requirement that probably sounds the death knell for racial gerrymandering cases. The Court declared that the district court committed “clear factual error in concluding that race played a predominant role in the legislature’s design,” and the absence of an alternative map warranted an “adverse inference against the Challengers.”

The opinion further called the plaintiffs’ expert reports “deeply flawed” for much the same reason. The “tens of thousands of maps [produced] with differently configured districts” did not include “a single map that achieved the legislature’s partisan goal” of keeping the challenged districts Republican, the majority held.

In the majority’s version of the evidence, no direct evidence suggested the legislature’s map was drawn with a racial “target,” as the district court found. The Court also criticized the district court for “infer[ring]” that, by keeping the racial percentages in the districts the same as previously existed (17 percent), race played a predominant role in the districts’ shape. It noted that no map offered by the plaintiffs “would have satisfied the legislature’s political aim” without increasing the concentration of minority voters, which would have created a Democratic majority. Thus, the majority concluded the 17-percent standard was “simply a side effect of the legislature’s partisan goal” and not constitutionally suspect.

The majority also rejected the dissent’s criticism that clear-error review is essentially perfunctory, declaring that “appellants are entitled to meaningful appellate review” of factual findings.

Justice Thomas concurred but protested the searching factual review that the majority undertook because, in his view, it “exceeds the proper scope of clear-error review” and was unnecessary to resolve the case. It is worth noting that the bulk of the Thomas dissent argues against the Court’s involvement in racial gerrymandering cases altogether. Within that stance, Thomas criticizes a “boundless view of equitable remedies” that he traces to fallout from Brown v. Board of Education and the decision’s “impatience with the pace of discrimination,” seemingly treating that as an original sin, which may have been justified at the time but that has brought about “extravagant uses of judicial power” well beyond the “Framers’ design.”

Justice Kagan’s dissent mounted more withering criticism, starting with the majority’s portrayal of the plaintiffs’ evidence in only the “sketchiest of terms.” She pointed out that evidence established that the software used by the mapmakers was configured to show how any change in the district lines affected the district’s racial composition and achieved “to the decimal point” the exclusion of African-American citizens to accomplish their partisan goals. Perhaps more importantly for appellate advocates, she accused the majority of abandoning the clear-error standard that substantially defers to plausible factual findings, by choosing the evidence that supports its preferred outcome, “ignores or minimizes less convenient proof,” and errs in its reading of expert opinions, while asserting a better understanding of the evidence than did the three-judge district court.

Kagan’s critique also asserts that the majority’s new clear-evidence rule defers, not to the district court, but to the losing defendant because the majority interposed a presumption that legislatures act in good faith. She adds that the alternative-map requirement constitutes a new invention by the majority, in whose absence an adverse inference is drawn “no matter how much proof of a constitutional violation [plaintiffs] otherwise present,” describing this as judicial “micro-management of a plaintiff’s case . . . elsewhere unheard of in constitutional litigation.” She then suggests that the majority opinion is an adoption of Justice Alito’s dissent from Cooper so that the “dissent becomes the law.” Only in that dissent, she points out, did an alternative map requirement receive support before. She also lambasted the majority for reformulating her own majority opinion in Cooper.

The bottom line outside the context of gerrymandering cases is that the majority endorsed a more powerful review of evidence by appellate courts, particularly when legal presumptions exist that support the appellant, creating a level of deference to their evidence over that found by the district court. Any advocate seeking clear-evidence review should now search for favorable presumptions that would support greater appellate scrutiny of the evidence.

Neurodiversity and Legal Advocacy: Introduction

Neurodiversity is a relatively new term applied to the range of differences in the human brain regarding social interaction, learning, attention, mood, and other mental functions. Rather than seeing a learning difference (like dyslexia) as a disability, neurodiversity looks at that difference as a point on a continuum of human perception and function. That perspective allows us to see the diagnosis as a difference, not a deficit.

Educators are increasingly aware of certain diagnosed differences because of the accommodations offered to address them. But simply allowing for extra test time or reading software does not address the opportunities that these differences can bring to the table. See Jennifer Kindred Mitchell, Teaching to Neurodiverse Law Students, 29 NO. 2 Persp. Teaching Legal Res. & Writing 49 (2022).

I know. I was diagnosed with dyslexia at a young age. I continue to rely heavily on spelling correction and third-party editing to address my difficulties with spelling and grammar. But I have also come to realize, over the years, that I have attendant strengths that make me a better advocate. My long-term memory, attention to narrative, empathy, and spatial reasoning are different, and often stronger, than those without dyslexia.

Each student is, of course, different. Some present with clear diagnoses. Some have learned to live with, or mask, their neurodiversity without disclosure to their teachers. Awareness of the different presentations of neurodiversity helps educators identify difficulties and strengths and address them head on.

Over the next few weeks, I will address three categories of neurodiversity from a strengths-based approach so we can be better at identifying and helping students and young lawyers with those differences cultivate their strengths and cope with their difficulties. I will start with dyslexia, since that is my experience and an area of some personal study, then address ADHD and autism.

If you have experience with neurodiversity in advocacy, either as a teacher or learner, I would love to hear from you as I prepare those posts. This is a young area and I think we would be well-served by putting our heads together and learning how to better help those who see the world a bit differently.

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

Is the United States Supreme Court a Political Institution?

Public opinion of the United States Supreme Court has declined recently, with some commentators arguing that the Court is a political institution. Below is a brief analysis of why the Court is perceived as political, and how the Court can avoid this perception in the future.

A.    Is the Court a “political” institution?

When one labels the Court as a “political” institution, how is “political” being defined? For this article, “political” is defined as reaching decisions that coincide with a justice’s policy preferences. This does not mean, of course, that a decision coinciding with a justice’s policy views is inherently political, or that the justices are basing their decision on political considerations, as there may be legitimate textual or statutory bases to reach those decisions. Notwithstanding, public perception of whether the Court is acting in a political capacity is often influenced by whether the Court’s vote in particular cases split along ideological lines.

Given this definition, is the Court a political institution? Yes and no. 

To begin with, most of the Court’s cases do not involve divisive social issues. Rather, they involve issues such as choice of law provisions in maritime contracts, trademark issues, the bankruptcy code, the takings clause, and the Federal Arbitration Act. Such cases do not result in decisions that most people would consider politically motivated.  

Furthermore, the Court’s cases are often decided unanimously or by six, seven, or eight-member majorities. From 2008 to 2019, for example, the Court’s unanimous decisions ranged from thirty-six to sixty-six percent of its cases.[1] Conversely, the percentage of 5-4 decisions ranged from five to twenty-nine percent.[2] Rulings with six, seven, and eight-member majorities ranged from twenty to fifty-one percent.[3] Additionally, in 2021, the Court reached unanimous decisions in sixty-seven percent of its cases, and in 2022, the Court was unanimous in forty-eight percent of its cases.[4]

Therefore, in most cases, politics does not likely influence the Court’s decisions. As such, in most cases, are the justices basing their decisions on their political preferences? No.

***

However, this does not end the inquiry. In the relatively small number of cases that involve divisive social issues, whether the Court’s decisions were political depends on your perspective.  For example, many conservative legal scholars would consider Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges to be political decisions, because in their view they were based on an interpretation of the Fourteenth Amendment that had no basis in the Constitution’s text, and that resulted in outcomes consistent with the liberal majority’s policy views regarding contraception, abortion, and same-sex marriage. Likewise, many liberal legal scholars would consider Bush v. Gore, Dobbs v. Jackson Women’s Health, and Students For Fair Admissions v. Harvard to be political decisions because in each case, the Court’s majority was comprised of conservative justices.

The point is that, in a small number of cases, the justices’ opinions consistently reflect their political views, regardless of whether they are conservative or liberal. Thus, to the extent that the Court is perceived as a political institution, both conservative and liberal justices bear some blame. Consider the following:

• Would Justice Elena Kagan, Justice Jackson, or Justice Sotomayor ever vote to restrict access to abortion?
• Would Justice Thomas or Justice Alito ever vote to restrict when the death penalty can be imposed?
• Would Justice Sotomayor and Justice Jackson ever vote to invalidate an affirmative action policy?
• Would Justice Thomas or Justice Alito ever vote to restrict partisan gerrymandering?
• Would Justice Kagan or Justice Sotomayor ever hold that the Constitution does not protect the right to same-sex marriage?

The answers to these questions should be obvious.

To make matters worse, when the political affiliations of the Court’s members change, the Court’s view of the Constitution – and fundamental rights – often changes. For example, for nearly fifty years, Roe v. Wade, where the Court held that the right to privacy encompasses a woman’s choice to terminate a pregnancy (in most instances), was considered settled law, particularly after the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe’s central holding. But after Justice Kavanaugh replaced Justice Kennedy, and Justice Barrett replaced Justice Ginsburg, the Court in Dobbs overturned Roe and suddenly discovered that the Constitution did not protect a right to abortion.

Why was Roe overturned? Because the Court now had more conservative than liberal members. One must wonder how the majority could not possibly realize that their decision would be perceived as purely political. The same goes for the justices who voted in Roe to find that the Constitution protects the right to terminate a pregnancy – a right found nowhere in the Constitution.

Cases such as Roe, Obergefell, and Dobbs show why the Court is perceived as a political institution and why its institutional legitimacy is affected negatively. Indeed, when the Court accepts for review cases involving issues such as abortion or the death penalty, most people know exactly how the justices will vote. They know that the justices will reach outcomes that so conveniently comport with their policy preferences. That is the reality, and even if it is not accurate, it is the perception. And perception is reality.

Additionally, conservative and liberal media commentators worsen the situation because they report on only the most controversial cases and, depending on the result that the Court reaches, promote the distorted perception that the Court is primarily a political institution. This is a recipe for undermining the Court’s legitimacy.

Ultimately, in Griswold, Roe, Obergefell, and Dobbs, were most justices basing their decisions on their political preferences? Yes.

B.    Solutions to increase public perception of the Court’s legitimacy.

Regardless of the Court’s many unanimous and super-majority decisions, its decisions in cases such as Roe and Dobbs undermined the Court’s legitimacy. Is there a solution that could help to restore that legitimacy? Below are two suggestions.

    1.    Deny certiorari unless the challenged law likely violates the Constitution’s text.

The Court should not grant certiorari unless a challenged law likely violates the Constitution’s text – not its “penumbras” or whatever unenumerated “right” that the substantive due process might invent. For example, in Citizens United v. FEC, did the First Amendment’s text clearly support the invalidation of a statute that strived to reduce the influence of money on federal elections? In Clinton v. New York, did the Presentment Clause clearly support invalidating the Line-Item Veto Act, which sought to reduce wasteful government spending? In Kennedy v. Louisiana, did the Eighth Amendment clearly prohibit the imposition of the death penalty for individuals who raped children under the age of twelve? In Roe v. Wade, did the Fourteenth Amendment clearly prohibit states from prohibiting abortion?

The answer is no.

So why did the Court decide these issues for an entire nation, often by a 5-4 vote? Your answer is as good as mine. Unless you believe that the Court should be guided by “evolving standards of decency that mark the progress of a maturing society.”[5]

When the Constitution is ambiguous and subject to alternative interpretations, the Court should not intervene. It should allow the states to resolve these issues democratically or, in the case of federal legislation, defer to the coordinate branches. When nine unelected and life-tenured judges decide an issue for an entire nation, especially by a 5-4 margin where the majority’s decision so conveniently aligns with the justices’ political beliefs, you have a recipe for disaster.

If you believe that this suggestion is unwise, consider Chief Justice Roberts’ opinion in National Federation of Independent Investors v. Sebelius and what may have motivated his decision.

    2.    Require a six-vote super-majority to overturn a lower court decision.

When the Court decides cases by a 5-4 vote, and those votes reflect little more than partisan division, that decision is likely to undermine the Court’s legitimacy. Put differently, should the law for an entire country depend on a one-vote majority at the Court, where those votes align with each justice’s policy preferences? No.

Instead, to overturn a lower court decision, the Court should be required to reach a six-vote super majority. Doing so would encourage compromise, consensus, and moderation, and lead to incremental, not drastic changes in the law. And it would prohibit a bare liberal or conservative majority from changing the law for an entire nation, particularly on divisive social issues. Indeed, had a six-vote supermajority been in effect when Dobbs was decided, abortion would still be legal until fifteen weeks of pregnancy. If a six-vote supermajority had been in effect when Citizens United was decided, money would likely not have the corruptive influence in politics that it does today.

Some might argue that this approach would prevent the Court from resolving circuit splits on matters of public importance. So what? There are many circuit splits where the Court denies certiorari, thus leaving them unresolved. We should not pretend that the Court’s responsibility is to resolve every circuit split or injustice that affects the country because the reality is quite the opposite. Furthermore, if there is a circuit split, such that the law is interpreted and applied differently in different states, why is that necessarily undesirable? This is already the norm, not the exception, and the incredibly small number of cases that the Court decides each term has only a marginal impact on that reality. And if you believe that the Court should defer to democratic choice at the state and federal level when the Constitution is ambiguous, a six-vote supermajority requirement would facilitate achieving that objective – as would an originalist approach to constitutional interpretation.

If the Court had less power, and intervened less often, the people, not nine unelected justices, would have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[6]

***

Attacks on the Court’s legitimacy reflect little more than disagreement with decisions that conservatives or liberals do not like. As Justice Kennedy stated, “[a]n activist court is a court that makes a decision you don't like.”[7] The conservative and liberal media – and politicians – do a terrible disservice when they attack the Court with inflammatory comments that influence the public’s perception of the Court’s legitimacy. Having said that, if the Court wants to shed the perception that it is a political institution, it should stop deciding cases that are so politically divisive. Along with a super-majority requirement, this will help to insulate the Court from attacks on its legitimacy, however unfair such attacks may be.

 

[1] PolitiFact | Despite popular misconception, Supreme Court 9-0 rulings are not that rare

[2] See id.

[3] See id.

[4] Michael D. Berry, The Numbers Reveal a United Supreme Court – And a Few Surprises (Aug. 2, 2023), available at: The Numbers Reveal a United Supreme Court, and a Few Surprises | The Federalist Society (fedsoc.org)

[5] Trop v. Dulles, 356 U.S. 86 (1958).

[6] Lawrence v. Texas, 539 U.S. 558 (2003).

[7] CBS News, Justice Kennedy: Senators Focus on Short-Term (May 14, 2010), available at: Justice Kennedy: Senators Focus on Short-Term - CBS News

Priming for Persuasion

One of the most powerful tools in an advocate’s toolbox is the psychological concept of priming.  Priming “occurs when an individual’s exposure to a certain stimulus influences their response to a subsequent prompt, without any awareness of the connection.”[i]  In other words, “[p]riming plants a seed in the brain [that] . . . causes us to form an impression that we then use to interpret new information.”[ii]

For example, in one famous research study, participants were exposed to a list of words associated with either adventurousness or recklessness.[iii]  The participants were then provided with a story involving a protagonist whose behavior was ambiguous with respect to those traits.[iv]  When later asked to characterize the protagonist’s behavior, participants were more likely to characterize the behavior consistent with the traits reflected in the words they were exposed to before reading the story.[v]

The concept of priming involves the inner workings of long-term memory.[vi]  Our long-term memory creates units known as “schemas,” which allow us more efficient access to memories by activating them through associated sights, smells, and sounds.[vii] “Priming suggests that certain schemas are activated in unison, which leads to related or connected units of information being activated at the same time.”[viii]

There are many kinds of priming[ix] that are relevant in legal writing, and among them are the following:

• Semantic priming—the association of words in a logical or linguistic way[x]
• Repetition priming—the repeated pairing of stimulus and response[xi]
• Perceptual priming—the perception of similarity between two things that may not, in fact, be similar[xii]

For semantic priming, think about rhetorical devices, such as parallelism, alliteration, anaphora, epistrophe, or metaphor to name a few.[xiii]  A famous example is Martin Luther King Jr.’s statement, “Injustice anywhere is a threat to justice everywhere.”

For repetition priming, there’s no better public example than Donald Trump’s approach to Robert Mueller’s investigation into potential ties between Trump’s 2016 campaign and Russia.  Over the course of more than two years, when tweeting about the investigation, Trump used the phrase “witch hunt” more than 160 times.[xiv]  A survey conducted around the same time revealed that, while roughly 60% of adults wanted the investigation, half had “‘just some’ or no confidence that a final report . . . would be ‘fair and even-handed.’”[xv]  Additionally, despite the majority support for investigation, 46% of respondents nevertheless believed it would go “too far,” and support for impeachment fell throughout the same time period.[xvi]

For perceptual priming, consider the recent cases of NetChoice v. Paxton and Moody v. NetChoice, wherein the Supreme Court considered the constitutionality of laws in both Texas and Florida designed to regulate how social media companies control content posted on their sites.[xvii]  The states argued that social media platforms are common carriers who may not arbitrarily discriminate against users’ speech,[xviii] while the social media companies argued that social media platforms are “traditional media” requiring “editorial discretion over the expression they disseminate.”[xix]  Though social media is truly neither of those things, the parties sought to have the Court perceive social media to be like the one more favorable to their respective positions.[xx]

Priming is persuasive because the connection is made subconsciously by the reader, and readers tend to trust their own conclusions above others.[xxi]  This is sometimes referred to as “‘the ownness bias’ or the tendency of ‘audience members to consider their own thoughts to be stronger than message arguments.’”[xxii]

Here’s where you can use it in your writing:

• Issue framing. Consider the abortion context; the issue could be framed as either protecting individual reproductive autonomy or protecting the rights of unborn persons.  By framing the issue favorably to your position at the outset, you are priming your audience to view the case through your chosen lens.
• Factual opening. Imagine a case involving student speech that led to some kind of disruption at school.  The competing values are a student’s First Amendment right to free speech and the school’s compelling interest in a safe and orderly learning environment.  If you represent the student, you want to open your facts section with a focus on the student and value of the speech the student made, thereby priming your audience to also value both the individual and the speech.  On the other hand, if you represent the school, you want to open with the facts underlying the disruption, priming your reader to see chaos and a justifiable need for school intervention.
• Argument headings. State your argument headings assertively as the conclusions you want your audience to draw. For example, “Trial counsel’s decision to reject the alibi defense was a matter of reasonable trial strategy”; or “The state presented sufficient evidence of the defendant’s deliberation.” The headings prime your reader to view the analysis and legal authority as consistent with those conclusions.
• Rule statements. When stating the applicable rules, begin with your position as the default outcome.  For example, when advocating in favor of summary judgment, establish granting the motion as the default position: “Summary judgment shall be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”  Or, when advocating against the entry of summary judgment, establish denial as the default position:  “Summary judgment should be denied unless the moving party establishes that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.”  Stating the rule with your preferred outcome as the default primes your audience to see your opponent’s position as the exception and yours as the rule.
• Quotation introductions. Before offering the reader quoted language from either a legal authority, a written document, or witness testimony, prime the reader by summarizing what you want them to understand from the language.  For example,

At the evidentiary hearing, trial counsel testified that she strategically chose not to call the alibi witness because his testimony was inconsistent with the chosen justification defense:  “From the beginning, [the defendant] told me he acted in self-defense, and I think the jury would have been confused if we put his brother on the stand to say he was at a party across town the whole time.”

This kind of priming helps focus the reader’s understanding of potentially ambiguous quoted language favorably to your position and align it with your legal authority.

This list is by no means exhaustive, and priming can be used in each of these areas on both large and small structural scales, from general organization down to sentence structure and word choice.  Priming is an exceptionally powerful persuasive tool.  Both using it and recognizing it can make you a more effective advocate.

 

[i] The Decision Lab, Why do some ideas prompt other ideas later on without our conscious awareness?, available at: https://thedecisionlab.com/biases/priming (last visited May 13, 2024).

[ii] Kathryn M. Stanchi, The Power of Priming in Legal Advocacy: Using the Science of First Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 307 (2010).

[iii] Barbara O'Brien & Daphna Oyserman, It's Not Just What You Think, but Also How You Think About It: The Effect of Situationally Primed Mindsets on Legal Judgments and Decision Making, 92 Marq. L. Rev. 149, 152 (2008).

[iv] Id.

[v] Id.

[vi] The Decision Lab, supra, note i.

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] Dave Cornell, 15 Priming Examples (in Psychology) (Jan. 3, 2024), available at: https://helpfulprofessor.com/priming-examples-psychology/ (last visited May 13, 2024).  This site also contains information about additional forms of priming, such as associative priming, cultural priming, affective priming, and more.

[xiii] For definitions of these terms and other common rhetorical devices, see https://www.merriam-webster.com/grammar/rhetorical-devices-list-examples (last visited May 13, 2024).

[xiv] Madison Pauly, Are Trump’s Attacks on Mueller Working? (Jan. 27, 2019), available at https://www.motherjones.com/politics/2019/01/are-trumps-attacks-on-mueller-working/ (last visited on May 13, 2024).

[xv] Id.

[xvi] Id.

[xvii] Amy Howe, Social Media Content Moderation Laws Come Before the Supreme Court (Feb. 23, 2024), available at:  https://www.scotusblog.com/2024/02/social-media-content-moderation-laws-come-before-supreme-court/ (last visited May 13, 2024).

[xviii] Brief of Petitioners, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xix] Brief of Respondents, Moody v. NetChoice, available at: https://www.supremecourt.gov/DocketPDF/22/22-277/291860/20231130111448519_2023-11-30%20Final%20NetChoice%20merits%20brief.pdf (last visited May 13, 2024).

[xx] Howe, supra, note xvii.

[xxi] See Michael J. Higdon, Something Judicious This Way Comes . . . the Use of Foreshadowing As A Persuasive Device in Judicial Narrative, 44 U. Rich. L. Rev. 1213, 1225 (2010) (“studies show that when processing messages readers are more persuaded by conclusions that are implicit rather than explicit, especially when the reader is more involved in the communication”).

[xxii] Id.

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

• Begin with a powerful opening theme that hooks the audience.
• Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
• Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
• Emphasize the most favorable facts that support your argument.
• Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
• Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
• Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
• Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

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Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.