Sunday, February 28, 2021
Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.
Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.
Repeat the Rule of Three from the opening. In the closing, you should repeat the Rule of Three (i.e., the three strongest reasons supporting a verdict in your favor) that was used in the opening statement and add to the explanation of each point the evidence elicited on direct and cross-examination that supports each of the three points. Simply put, your goal should be to ensure continuity and cohesion throughout the presentation of your case. By following the same structure in your opening and closing (e.g., repeating the theme and rule of three), you simplify the argument for the jury and remind the jury of the strongest points justifying a ruling for your client.
Show emotion and passion. Never deliver your closing argument in a monotone or disinterested manner. Show appropriate emotion. Argue with passion. After all, if you aren’t passionate and emotional about your client’s case, how are you going to persuade the jury to rule in your favor?
Never read the closing. Your goal during the closing should be to relate to the jury. You want the jury to like you and trust you. Thus, speak directly to the jury in an authentic and conversational tone. If you read your closing, you create an artificial – and detrimental – distance between yourself and the jury and, in so doing, you minimize the persuasive value of your arguments. Remember that an excellent closing argument is as much about performance as it is about substance.
Address the weaknesses in your case. Before delivering your closing, put yourself in the shoes of the jurors. What questions would you have about the merits of your case? What weaknesses would you identify? When you identify such questions and weaknesses, address them in the closing. In so doing, you give yourself the opportunity to explain why these weaknesses should not affect the outcome or remedy you seek, and you establish your credibility with the jury.
Discuss the evidence in detail but do so in a manner that tells a story. The best attorneys know how to tell a compelling story at trial. They know how to capture and hold the jury’s attention. They highlight favorable facts and explain away unfavorable facts. And in the closing, the best attorneys use the testimony elicited at trial to complete their story, reinforce the theme and the Rule of Three, and make a passionate case for a ruling in their client's favor. The best attorneys also know what not to do: never merely summarize the evidence. Don’t feel the need to discuss the testimony of every witness. Instead, emphasize and highlight the evidence most favorable to your client and structure your presentation in a manner that compliments your theme (and Rule of Three), and convinces the jury to rule for your client.
Use non-verbal techniques. When delivering your closing, remember that jurors want to see you as a relatable human being who has compassion, decency, and common sense. To establish relatability, you should use strategic movements. For example, move to a different space when discussing each rule of three, even if it is merely a couple of feet. Vary your tone and voice projection. Maintain an open stance, with your feet shoulder-width apart. Use facial expressions and hand gestures to emphasize important points. Your goal is to be authentic, not rehearsed, and convincing, not contrived. And most importantly, be confident, because confidence is everything.
End powerfully. Make your last words your best and most memorable. Your objective is to make sure that the most important points supporting your case stick in the jurors’ memories. Thus, your last sentence or paragraph should impact the jurors’ emotions and sense of justice. It should state with simplicity and uncompromising conviction the reason why you should win. For example, in the O.J. Simpson trial, attorney Johnny Cochran stated, “If it doesn’t fit, you must acquit.” People still remember that line today. And for good reason.
Ultimately, attorneys should remember that a closing argument, like any other aspect of a trial, is a performance. It is not merely a presentation of the evidence and an analysis of the facts. It is a uniquely human endeavor. Thus, your performance, including your likeability, relatability, and authenticity, will matter as much, if not more, than the evidence itself.
Saturday, February 13, 2021
Opening statements are among the most critical aspects of a trial. Indeed, the opening statement provides attorneys with the opportunity to, among other things, make an excellent first impression with the jury, highlight the most favorable facts supporting an attorney's argument, and establish trust and credibility with the jury. Below are tips to maximize the persuasive value of an opening statement.
Begin with a theme. First impressions are critically important, whether it is at a trial, in an interview, or during an audition. For that reason, it is vital to start strong when delivering your opening statement. A powerful beginning, among other things, gets the jury’s attention and establishes your credibility immediately. To ensure that you deliver a persuasive and powerful opening, begin with a theme. A theme is a concise, one-sentence statement that explains what the case is about and, more importantly, why the jury should rule in your favor.
Tell a story. It is critical to tell a compelling and enjoyable story that has a beginning, a middle, and an end. The story should include vivid details and powerful language concerning, among other things, the characters in your story (e.g., the plaintiff and defendant), and the atmosphere within which the events in question occurred. A compelling story helps to personalize your client, enables the jury to visualize (and thus relate to) the relevant events, and enhances your statement’s emotional impact.
Use the Rule of Three. The best opening statements are well-organized and cohesive. One of the best ways to ensure that your opening statement is structured effectively is to use the Rule of Three. Simply put, the Rule of Three provides the jury with three distinct reasons that support a verdict in your favor – and maximizes the persuasive value of your statement. As one commentator explains:
We humans tend to think in triplets. Three is a good number to wrap our mind around, and we see it in all kinds of instances. We tend to remember points best when given in groups of three, we scan visual elements best when they come in threes, and we like to have three options to consider. Think how often three comes up in our society: three little pigs, three strikes, three doors on ‘Let’s Make a Deal,’ three competitive quotes. It’s a triordered world out there.
In essence, the Rule of Three “creates simplicity, aids recall and makes your job easier.”
Use demonstrative exhibits. During opening statements, demonstrative exhibits can often be a powerful tool to convey important facts and evidence to the jury in a well-structured, clear, and concise manner. Indeed, such exhibits focus the jury’s attention on the strongest facts and evidence supporting your argument, and can make your opening statement more persuasive and engaging, particularly for jurors that prefer visual images to enhance their understanding of the case.
Keep it simple and understandable. Opening statements should always be delivered using simple and easy-to-understand language. Thus, avoid fancy or esoteric words. Eliminate unnecessary legalese. And be sure to explain complex concepts in a clear and straightforward manner. Otherwise, you will likely lose the jury’s attention and fail to communicate your argument persuasively.
Be likeable, relatable, and credible. Likeability is an integral part of persuasive advocacy. Jurors (and judges) will be more inclined to rule in your favor or give you the benefit of the doubt if they like you. To enhance likeability, do not read your opening statement to the jury. Do not use notes. Instead, speak to the jurors in a conversational tone. Make eye contact and engage the jurors. Smile. Be friendly. Do not talk down to the jurors, attack your adversary, or speak in an overtly hostile manner. If the jurors like you, you will gain trust and credibility, both of which are essential to maximizing the persuasive value of your arguments.
Use non-verbal techniques. Non-verbal techniques are an essential part of effective advocacy. Such tecnhniques include, but are not limited to, avoiding speaking in a monotone and overly formalistic way. Instead, vary your tone and pace to emphasize important facts. Show authentic emotion. Use hand gestures and different facial expressions. Do not stand in one place for the entirety of your opening statement. And do not act in any manner that can be perceived as contrived and disingenuous. Effective non-verbal techniques contribute immeasurably to showing the jury that you are a genuine and relatable person -- and increase your openig statement's persuasive impact.
Confront unfavorable facts. Do not avoid facts that are unfavorable to your case. Instead, confront those facts in your opening statement and explain why such facts do not and should not affect the outcome or remedy you seek. If you fail to confront unfavorable facts, you can be certain that your adversary will, and when that happens, your credibility will be undermined substantially.
Avoid including unnecessary or irrelevant facts and explanations. Your opening statement should capture the jury’s attention from the first sentence and keep the jury’s attention until you conclude. To accomplish this, and to maximize persuasive impact, the opening statement must be interesting, engaging, and, at times, captivating. As such, avoid including unnecessary or irrelevant facts and explanations. Make sure that your statement is not too lengthy, unduly repetitive, ineffectively organized, or plain boring. Otherwise, you risk losing the jury’s attention – and your case.
End strong. The end of your opening statement is equally as important as the beginning. Your goal should be to reinforce the theme, maximize emotional impact, and highlight in a memorable way the strongest facts and evidence supporting your argument. Ask yourself, “what is the last and most important thing that I want the jurors to hear before they deliberate?” After all, a poor and unpersuasive ending can affect negatively the manner in which the jurors assess your arguments and, ultimately, diminish significantly your likelihood of success.
 Paul Luvera, “The Importance of a Trial Theme and the Rule of Three” (Jan. 16, 2011), available at: The immportance [sic] of a trial theme&the rule of three – Plaintiff Trial Lawyer Tips (internal citation omitted).
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- The Supreme Court let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press.
- The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic. See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.
- The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now. The two arguments concerned funding for the border wall and the “Remain in Mexico” policy. See reports in Reuters, The Hill, and Bloomberg News.
Federal Appellate Court Opinions and News
The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.
The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance. The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.
State Appellate Court Opinions and News
- The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.
- Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”
February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Tuesday, February 9, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the second post in the series.
Do provide a consistent, coherent argument:
- Do research the applicable law thoroughly.
We have an obligation to the court and to our client to conduct thorough and exhaustive research. Rule 1.1 of the ABA Model Rules of Professional Conduct says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes an obligation to update our research. Failure to research adequately can cause harm to clients and embarrassment to counsel as demonstrated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).
- Do investigate the facts diligently.
A corollary to the duty to research the law thoroughly is a duty to thoroughly investigate the facts of the case. The Federal Rules of Civil Procedure state that when an attorney signs a pleading he or she is representing that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]”
- Do plan and organize your writing.
Outlining saves time. The more time we spend planning and outlining our writing, the less time we spend writing and rewriting. Outlining helps us organize our arguments, see gaps in our reasoning, and see things that can be eliminated. And consider as the first step, using a non-linear outline. This is a technique espoused by Bryan Garner and discussed in his book, Legal Writing in Plain English. To use this technique, the writer starts with a circle in the middle of the page that contains the issue or purpose of the writing. Off of that circle branch sub-issues, facts, authorities, and parts of what might become the final document. Here is an example from Legal Writing in Plain English:
The writer then uses this nonlinear outline to create a linear outline. Nonlinear outlining allows the writer to see how various facts and arguments might better fit before committing to a final, linear outline.
- Do make sure that any legal theory you present is consistent with applicable law.
ABA Model Rule of Professional Conduct 3.1 provides, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” So, as part of our writing process, and along with our duty to thoroughly research the law and investigate the facts, we must ensure our legal theories are consistent with applicable law.
- Do use persuasive authority.
I have to assume that in this instance the authors of the Dos and Don’ts meant, “Do use binding authority.” We all want to find that magic case that is on “all fours” with our case. In those rare instances when we do, we should cite it. Of course, we all know how infrequently that happens. When we can’t find a case that is binding, then we have to turn to persuasive authority. But not all persuasive authority is created equally. Think about what authority is likely to be more persuasive in your jurisdiction. Ask yourself questions such as, is the jurisdiction that produced the authority in the same geographic region or federal circuit as mine? Has the court relied on authority from this jurisdiction in other cases? How often have courts in other jurisdictions relief on this particular authority?
- Do state clearly what you are requesting in motions and briefs.
Ask for what you want and consider asking for alternative relief.
 Fed. R. Civ. P. 11(b)(3).
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Saturday, January 23, 2021
Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing. In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques: (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts. I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing. Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words: “Tonya Harding skates.”
Of course, I am always looking for new samples. Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter. In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts. See AWS Opp. to Parler's TRO Request. The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.
Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:
This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens.
Id. at 2. The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.” Id.
The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument. As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:
- Parler Conducts the “Absolute Minimum” of Content Moderation.
- Parler Enters an Agreement with AWS for Web Hosting Services.
- Parler Repeatedly Violates the Agreement.
- AWS Exercises Its Right to Suspend Parler’s Account.
AWS Opp. to Parler's TRO Request at 2-5.
Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision. It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader. While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story. For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives. The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’” Id. at 2-3. This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.
As appellate practitioners and writing teachers, we all benefit from reading each others’ work. I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing.
Saturday, January 16, 2021
It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.
Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong. Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.
The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.
The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed. Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen. Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants. And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.
However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed. Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.
Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months. In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.
After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.
Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”
 408 U.S. 238 (1972).
 543 U.S. 551 (2005).
 536 U.S. 304 (2002).
 572 U.S. 701 (2014).
 576 U.S. , 135 S. Ct. 2726 (Breyer, J., dissenting).
 See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog
 In re Gault, 387 U.S. 1 (1967) (internal citation omitted).
Saturday, January 2, 2021
Many of my younger students come from collegiate writing programs which do not use Oxford commas. These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more. This comma, known as a serial or Oxford comma, can change meaning. Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.
The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility. See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html. Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement. The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay. Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation. (For more laughs, really, I highly recommend one of my family’s favorite books: Lynne Truss, Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)
Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers. Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/. As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’” Id.
While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing. As Gurnett concludes: “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.” Id.
Last week, Pocket republished Chris Stokel-Walker’s article on serial commas. Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab. In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies. As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.” Id. He provides great examples to remind us about the need for precision.
First, Stokel-Walker cites the United States Tariff Act. As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs. However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.” Id. Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime. Id.
Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial. Id. In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act. Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.” Id. As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free. Id. Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown. Id. Unfortunately for Casement, the court applied the comma and ordered him executed.
Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.
Happy new year!
Saturday, December 26, 2020
Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.
Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.
Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.
The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…
Here is an example:
Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”
The defendant’s comments were defamatory for three reasons. First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.
After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.
Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.
Why is the Rule of Three so effective?
1. The Rule of Three simplifies your arguments
Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.
The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.
2. The Rule of Three organizes your arguments
The worst briefs are often those that go on…and on…and on…
The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.
The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.
3. The Rule of Three appeals to the audience’s cognition and psychology
Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?
Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.
The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere. In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.
Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.
Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.
Below are a few videos regarding the Rule of Three.
 Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)
Sunday, December 13, 2020
Tired of online court, school, happy hour, family holidays, and more? Me too. However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve.
Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court. As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.
Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument. You can see his blog here: Judge Pierre Bergeron's Tips. He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.” Id. These tips apply equally to in-person arguments.
Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general. See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020). As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.” Id. Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.
Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico. See id. Thus, “preparing a presentation ahead of time is still crucial.” Id. Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam. See id. I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom.
Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire. Alder recommends: “Dressing properly means wearing professional attire from head to toe, not just head to waist.” Id. “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.” Id. The key: “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said. Id.
We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges. This lesson matters even more for online arguments, where the format makes true eye contact impossible. To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal. Id.
Finally, we all need to be more attentive to virtual context clues in online arguments. “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.” Id. Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said. Id. As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’” Id. And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question.
In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world. I know many law students and lawyers feel the same way. But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.
December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Friday, December 4, 2020
US Supreme Court Opinions and News
- The Supreme Court has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.
- The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision). See reports from NPR, The New York Times, and The Washington Post.
- James Romoser posted a thread this week about the petitions the Court is considering this week.
Federal Appellate Court Opinions and News
- While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.” See the order and reports from The Washington Post and The Hill.
- The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment. The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky. See the order and reports from the Philadelphia Inquirer and ESPN.
Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.
Thursday, December 3, 2020
Since virtually every appellate court in the country is conducting oral arguments by video at this point (I’ll use “Zoom” for shorthand, since that appears to be the platform of choice), I thought it appropriate to offer a few pointers for Zoom arguments based on my experience serving as an appellate judge for dozens of such arguments. And I’ll preface this by saying that overall these arguments have gone very well—the technology has worked, counsel has performed admirably, and I think Zoom arguments have exceeded our expectations.
Practice with the medium: Make sure that you’re comfortable with the technology, and that you have a reliable internet connection (hard-wired if at all possible). Do a virtual moot with some colleagues to ensure that you’re ready for the argument.
Pause: Some judges are a little more reluctant to interrupt during Zoom arguments, so bear that in mind. A good practice is to pause periodically, just for a split second or so, in an effort to invite questions. Some lawyers launch into extended soliloquys with hardly a breath, which discourages questioning. You want oral argument to be a discussion so that you can tell where you need to persuade the panel.
Know your record (and cases): When you are in court, there’s a limited amount of materials that you can take with you to the podium. For Zoom arguments, however, you can be surrounded by all sorts of record cites and cases at your desk. But be wary of this – just because you have stacks of papers does not mean you can actually locate key record cites in response to a question. Consider just having the most important parts of the record at the ready, much like you would in court.
Backup plans: Crazy things happen in Zoom arguments. Sometimes counsel disappears; sometimes judges do. The important thing is to anticipate such problems (much like a difficult hypothetical) and know what to do if you’re cut off from the argument. Most courts have information sheets with telephonic numbers to call into in the event of a technological glitch, but if not, ask for this in advance of argument.
Provide a roadmap: Roadmaps are always helpful for oral arguments, but I’ve found that particularly so for Zoom arguments. Some courts don’t have a clock on the screen, and it’s not unusual for judges and counsel to lose track of time. If you’ve provided a good roadmap, it might encourage questions from the judges to focus you on the arguments they’re interested in, and it may help you manage your time better.
Seek clarification when necessary: Sometimes the judges encounter technological glitches themselves—if this occurs during a question, don’t be shy about asking the judge to repeat the question rather than risk answering the wrong question. Also, I’ve seen situations where a presiding judge may have not understood that a particular counsel was going to argue (in multi-party appeals) until too late—if you have any doubt about something like this, it’s best to clarify that you’re going to argue for x minutes and co-counsel will argue for y, or something similar.
Good luck out there! We hope to see you in person in 2021! -- Judge Pierre Bergeron
Sunday, November 29, 2020
In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.
The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices. Second, the government may not enact laws that impose a substantial burden on religious practices. Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply. Fourth, the government may not coerce individuals into acting contrary to their religious beliefs. Fifth, the government may not target or discriminate against religion generally or specific religious denominations.
In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:
Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.
Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.
Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.
In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.
In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause. To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.
Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people. Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.” Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:
[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:
People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.
Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot. For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.
Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses. In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures. Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,”  Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.
1. Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends
Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:
What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.
In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:
In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.
In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”
Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:
To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.
The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.
2. Chief Justice Roberts is arguably prioritizing politics over the rule of law
Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.
Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”
Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.
Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.
3. Ideology continues to influence the justices’ decisions
It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.
Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.
These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See Reynolds v. United States, 98 U.S. 145 (1878)
 See Wisconsin v. Yoder, 406 U.S. 205 (1972).
 See United States v. Ballard, 322 U.S. 78 (1044).
 See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
 See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).
 See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Gorsuch, J., concurring)
 See id.
 See id. (Justice Breyer also dissented on similar grounds).
 See id. (Sotomayor, J., dissenting).
 See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S. , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. , available at: 19a1070_08l1.pdf (supremecourt.gov)
 Id. (Sotomayor, J., dissenting).
 Id. (Gorsuch, J. concurring).
 Id. (Roberts, J., concurring).
 Id. (Gorsuch, J., concurring).
Sunday, November 15, 2020
Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.
Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.
1. Elena Kagan
By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.
One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
2. Neil Gorsuch
Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.
3. John Roberts
Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none. Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.
Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty. Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.
Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.
4. Stephen Breyer
Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations. Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}
The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.
One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.
5. Clarence Thomas
Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections. Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.
However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances. Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.
6. Sonia Sotomayor
Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.
However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies. Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making.
7. Brett Kavanaugh
Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.
Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.
8. Samuel Alito
Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.
However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.
Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.
 139 S. Ct. 2484 (2019) (Kagan, J., dissenting).
 567 U.S. 519 (2012).
 572 U.S. 185; 570 U.S. 529 (2013).
 136 S. Ct. 2292 (2016).
 Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.
 410 U.S. 133 (1973).
 572 U.S. 291 (2012).
 Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772
November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, November 1, 2020
In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance. These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.
In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:
If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.
But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.
1. Require a 6-3 supermajority to affirm or reverse lower court decisions
Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.
Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.
2. Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.
In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause. Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto. Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?
Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut). Instead, it should defer to the coordinate branches – and to democratic choice.
3. Allow the Supreme Court to issue advisory opinions
The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.
Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights. And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.
Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.
 Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at: https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.
 567 U.S. 519 (2012).
 524 U.S. 417 (1998).
 381 U.S. 479 (1965).
November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Tuesday, October 20, 2020
Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.
Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.
Waiver at Trial - The Monster Under the Bed.
At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.
And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.
The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.
Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.
Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.
But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.
Waiver on Appeal - The Monster in the Closet.
Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).
This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.
Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").
Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.
And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).
As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).
Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.
(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).
Sunday, October 18, 2020
Amy Coney Barrett will almost certainly be confirmed to the United States Supreme Court – and deservedly so. Judge Barrett is an extraordinary legal scholar and judge, and numerous former colleagues and students have emphasized that she is a person of outstanding character, integrity, and compassion.
Additionally, Judge Barrett is an originalist, which is a theory of constitutional interpretation that requires judges to interpret the Constitution’s words as they were understood by those who drafted its provisions. Yet, originalism has been criticized by many in the legal academy. For example, some scholars claim that originalism leads to unjust and often draconian results, and fails to account for societal changes that the Constitution’s drafters could not foresee. Some scholars also assert that the broad phrasing of many provisions in the Bill of Rights suggests that the Constitution’s drafters entrusted future generations with the authority to divine constitutional meaning based on contemporary societal attitudes. For these and other reasons, many scholars embrace “living constitutionalism,” which states that the Constitution is a “living document” and that judges have the power to create constitutional meaning based upon the evolving needs of contemporary society.
These assertions both misunderstand originalism and misrepresent living constitutionalism. The former is, when properly applied, intellectually honest and fundamentally democratic. The latter is neither. For the following reasons, originalism is, without a doubt, the most sensible and commonsense approach to constitutional interpretation.
Originalism does not lead to unjust outcomes. The notion that originalism leads to unjust outcomes is nonsense. This argument misunderstands both originalism and the nature of judging. First, judges should not – and usually do not – decide cases based on the outcome that a judge desires or the policy that a judge prefers. If judges predicated their decisions on subjective policy preferences – and manipulated or disregarded the Constitution’s text to achieve those preferences – democratic choice would be undermined in favor of nine unelected and life-tenured judges. In essence, originalists recognize that the process of judicial decision-making is critically important to ensure, among other things, individual liberty, de-centralization, bottom-up lawmaking, and the judiciary’s institutional legitimacy. Second, originalism does not lead to objectively unjust outcomes; rather, critics of originalism only object to outcomes with which they subjectively disagree. Of course, that is not a reason to criticize originalism. As Justice Neil Gorsuch explains:
Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Moreover, to the extent that an outcome is considered unjust, the remedy is to effectuate change by the people through the legislative process – or through a constitutional amendment.
Originalism is fundamentally democratic. Originalism restrains and limits the power of judges to change constitutional meaning. It requires judges to interpret the text honestly and in accordance with what the Constitution’s drafters understood the words to mean. In so doing, originalism promotes respect for the rule of law, prevents unelected judges from substituting their policy preferences for those of legislators and citizens, and preserves a constitutional structure predicated on federalism, separation of powers, and decentralization. As Judge Barrett stated during the hearings, constitutional law is not “the law according to Amy,” but the law as enacted by the people. And contrary to some scholars’ contentions, originalism is not a vehicle by which conservative justices seek to reach conservative results. As Justice Gorsuch explains:
[S]ome suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).
The alternative – living constitutionalism – is fundamentally anti-democratic. As stated above, living constitutionalists believe that the Constitution is a “living document,” and that judges have the power to create constitutional meaning based upon evolving societal attitudes. The problem with living constitutionalism is that it enables judges to ignore or manipulate the Constitution’s text to achieve preferred policy outcomes. In so doing, living constitutionalism provides unelected judges with the power to decide issues that should be resolved through the democratic process (e.g., issues on which the Constitution is silent or ambiguous), and thus deprives citizens of the power to effectuate change democratically. As Justice Gorsuch stated:
I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Indeed, the anti-democratic and deleterious nature of living constitutionalism was on full display in Griswold v. Connecticut, where the Court invalidated an admittedly silly law banning contraception. The Court in Griswold acknowledged that the Constitution’s text, particularly the Fourteenth Amendment, did not provide a basis upon which to invalidate the law. However, the Court’s majority remained undeterred and decided to create an unenumerated right out of thin air. Specifically, the Court held that “[s]pecific guarantees in the Bill of Rights have penumbras … formed by emanations from those guarantees that give them life and substance.” In so holding, the Court concluded that a judicially-created, non-textual ‘right to privacy,’ which was implied from the judicially-created, invisible penumbras, supported invalidation of the statute. And in Roe v. Wade, the Court relied upon these very penumbras to hold that the Fourteenth Amendment’s Due Process Clause, which was originally designed only to ensure that life, liberty, and property could not be deprived without due process of law, supported a right to abortion before viability. To be sure, I support abortion rights. But I could never support the reasoning in Roe. It is constitutionally indefensible.
Make no mistake: living constitutionalism is not the knight in shining armor that some would have us believe. In fact, it has led to some of the worst decisions in the history of American constitutional law. As Justice Gorsuch explains:
Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.
Indeed, Justice Gorsuch highlights the real and substantial harms that living constitutionalism can cause:
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?
Put simply, “the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.” In short, living constitutionalism is not a legitimate theory of constitutional interpretation.
Ultimately, Amy Coney Barrett will be confirmed because she is a brilliant jurist, a person of the highest character and integrity, and a judge who recognizes that “the law of Amy” should never be substituted for the law of the people. Originalists also recognize that – and originalism is, as Justice Gorsuch stated, “the best approach to the Constitution.”
 Justice Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
 381 U.S. 479.
 Id. at 484 (emphasis added).
 410 U.S. 113 (1973).
 Gorsuch, supra note 1, available at: available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
Sunday, October 11, 2020
On the eve of Amy Coney Barrett’s confirmation hearings, members of the Republican and Democratic parties are preparing for what will likely be a difficult and highly partisan hearing. Republicans on the judiciary committee will likely contend that Judge Barrett’s qualifications, reputation, and character overwhelmingly support her confirmation. Democrats will likely contend that confirming Judge Barrett less than a month before the Presidential election is inappropriate, particularly given the Republicans’ refusal to hold hearings for Merrick Garland in the months preceding the 2016 election. Regardless of whether Judge Barrett is confirmed (the odds are solidly in her favor), few can doubt that the hearings will be contentious and reflect the partisanship and divisiveness that currently pervades the political arena. The consequences will not be insubstantial; rather, Judge Barrett’s hearing, like the hearing of then-Judge Brett Kavanaugh, will underscore how political the confirmation process – and arguably the Court itself – has become. And it will potentially undermine the public’s confidence in the Court and the rule of law.
To make matters worse, some members of the Democratic party have threatened to “pack the court” with additional (and arguably liberal) justices to counter the solidly conservative majority that Judge Barrett’s confirmation would likely create. But packing the Court will make the problem worse, not better. It would be predicated on the assumption that a President’s – and a justice’s – perceived ideology and policy predilections will lead to outcomes that one party deems politically desirable. And if the public perceived as such, the Court would become more politicized, the rule of law more trivialized, and the legitimacy of the Court’s decisions minimized.
So how can we preserve the rule of law, maintain the Court’s independence, and ensure confidence in the Court’s decision-making process? Not through a contentious and partisan confirmation hearing. Not by packing the Court.
Instead, require a supermajority. Specifically, require that to reverse or affirm a lower court decision (and, of course, change the law), six, not five votes, are required.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. First, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues controversial decisions.
Second, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would be minimized.
Third, a six-vote majority requirement would likely affect the process by which the Court grants certiorari. The Court would be less likely to accept cases -- particularly those involving divisive social and political issues -- if the justices knew that there was little, if any, likelihood of obtaining a six-vote majority. The effect would be that many decisions concerning divisive policy issues would be resolved through the democratic process, not by nine unelected judges with life tenure.
Fourth, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. This is a good thing; after all, the Court’s decision in Roe. v. Wade, which was indefensible as a matter of constitutional law, has engendered so much backlash that the right to abortion will continue to be litigated for the foreseeable future.
Fifth, a six-member majority requirement would de-politicize the Court and the process by which justices are confirmed, preserve the Court’s independence, and protect the Court’s legitimacy. Simply put, packing the Court isn’t the answer. Requirement a six-vote majority is – and should be considered seriously.
Friday, October 9, 2020
US Supreme Court Opinions and News
- The 2020-21 Supreme Court term began this week on Monday, October 5. Why does the new term begin on the first Monday of October? Well, it’s a congressional mandate. For more on how the Court’s sessions were set and what happens on the first day, see The National Constitutional Center. Here’s the list of cases for the October, November, and December sittings. And for commentary on the new term, see reports from NPR, CBS, LA Times, The Hill, The ABA Journal, and CNN.
- The Court refused to hear the appeal of the former Kentucky clerk, Kim Davis, who gained national attention after she refused to issue marriage licenses for same-sex couples citing her religious convictions. Two of the affected couples sued her for violating their constitutional rights. A lower court ruled the suit could go forward because the couples made a plausible allegation that Davis violated their established right to marry and because Davis was not entitled to qualified immunity as a city official. Although the Court rejected the petition without statement, Justice Thomas, joined by Justice Alito, published a statement reasserting their objections to the landmark case Obergefell v. Hodges, the 2015 case that found a Fourteenth Amendment right to same-sex marriage; the Justices reassert the claim that recognizing a right to marriage could have “ruinous consequences for religious liberty.” See the statement here, and reports from The Washington Post, Bloomberg, The Hill, and The New York Times.
- The Court refused to reinstate a federal requirement that women appear in person to a medical facility to receive medication to end their pregnancies. The requirement was suspended by a lower court that issued a nationwide injunction in light of the pandemic because needless trip to a medical facility during a health crisis likely imposed an undue burden on the constitutional right to abortion. The Court returned the case to the trial court for a ruling within 40 days, opining that “a more comprehensive record would aid this court’s review.” See the order. For more on this, see The New York Times, The Hill, and Reuters.
Federal Appellate Court Opinions and News
- The Second Circuit ruled that the Manhattan district attorney can enforce the subpoena seeking Donald Trump’s personal and corporate tax returns. The court rejected the arguments that the subpoena was too broad and that it qualified as harassment. The decision will likely be appealed to the Supreme Court. See the order and reports from The New York Times, AP News, and Bloomberg.
- The Ninth Circuit ruled that AT&T must face a lawsuit alleging its affiliate DirectTV violated consumer protection laws by making robocalls to a consumer's cell phone, rejecting an argument that the suit belonged in arbitration. The court ruled that the customer was not bound by AT&T’s arbitration clause, which requires its customers to submit to arbitration any claims against AT&T or its affiliates, because AT&T had not acquired DirectTV when the customer had signed the agreement. See the order and reports from Bloomberg Law (subscription required) and Digital News Daily.
- The Ninth Circuit upheld a lower court decision allowing the 2020 census count to continue through October. The administration had attempted to end the count on September 30. See order and reports from the San Francisco Chronicle and AP News.
State Appellate Court Opinions and News
The Pennsylvania Superior Court ruled that the federal Protection of Lawful Commerce in Arms Act is unconstitutional and has allowed a suit against gun manufacturers and sellers to continue. The suit alleges a gun that accidentally killed a teenage boy discharged due to a manufacturing defect. Under the Act, the manufacturer and seller would be immunized against the suit. The decision, a first in the country, found that that Act is “constitutional overreach” and violates the Tenth Amendment, which gives power, such as the tort reform intended by the act, to individual states. The court ruled the Act an overreach because it immunizes “the gun industry from every conceivable type of joint and comparable liability known to the common law” even if a product is faulty and causes harm and “regardless of how far removed from interstate commerce the harm arises.” See the order and reports from Reuters, CNN, and The Hill.
Tuesday, October 6, 2020
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.
Do Maintain Proper Focus:
- Do keep your purpose in mind while writing.
Why are you writing what you’re writing? What are you trying to accomplish? While the purpose of most of the writing of appellate advocates is straightforward—persuade the court and win your client’s case—we also write for other purposes. We write to clients, opposing counsel, co-counsel, court staff, prepare CLE materials, etc. We are trying to achieve different things and thus have different purposes, in writing to, or for, each of those audiences. We need to keep that purpose in mind for each thing we write.
- Do tailor your writing to your primary audience, but be aware that others may read what you have written.
We must reach our audience. We are writing for our audience, not ourselves. It’s quite easy to get caught up in our own brilliance and the clever turn of a phrase, but if our audience can’t understand what we’re trying to communicate, we’ve failed as writers.
We must strive to make our writing clear for our audience. One thing that creates ambiguity and confuses readers is vague pronoun references. When a writer uses a pronoun, she knows who or what the pronoun refers to, but it may not be clear to the reader. Take this example: “Ed and Sonny went to dinner and he ordered the fish sandwich instead of a steak.” Who ordered the fish sandwich? Because I’m friends with Ed and Sonny, I know Sonny would always choose a steak over a fish sandwich, but my reader wouldn’t know that. To make the meaning clear to my reader, I should write, “Ed and Sonny went to dinner and Ed ordered the fish sandwich instead of a steak.”
We must communicate clearly to our primary audience while remembering that everything we write has a secondary audience. Sometimes we run into difficulties when we neglect or forget about, that secondary audience. Then our writing may end up as an exhibit, as did this email from plaintiff’s counsel in an insurance-claim dispute:
This is an extreme example—although not the most extreme, even from this twenty-page exhibit. But the point remains, we must anticipate and consider a secondary audience when we write.
So, do identify the purpose of your writing and do keep your primary and secondary audiences in mind while writing.
 Alexa Z. Chew and Katie Rose Guest Pryal, The Complete Legal Writer, 5 (Carolina Academic Press, 2d Ed. 2020).