Sunday, August 1, 2021
Judges have considerable freedom to write opinions as they like. They write for a broad audience. A judicial opinion speaks not just to the case’s lawyers and their clients, but to other judges, the legal academy, and perhaps, most importantly, the lay public. Even though most judicial opinions will not penetrate the public consciousness, the decision in a case should seek to demonstrate the elements we associate with thoughtful and considered judging. Still, in a world where social media champions the clever turn of phrase and even the burning insult, readers should not be surprised when judges adopt a vernacular not often associated with legal writing.
Some subject matters will not open the door to that type of accessible writing. Justice Elena Kagan once announced the opinion of the Court on a rather dry issue concerning the Anti-Injunction Act with: “If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.” On the other hand, as an inveterate comic book superhero enthusiast, Kagan could not resist throwing in a gratuitous line in a patent infringement case involving “Spider-man”: “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)” and citing an issue of the comic book as authority elsewhere in the opinion.
Indeed, her late colleague, Justice Antonin Scalia, is remembered as much for his pointed barbs and colorful jargon as he is for his dedication to a form of originalism in interpreting the Constitution. For example, lamenting the much-criticized Establishment Clause test from Lemon v. Kurtzman, Scalia memorably described its usage after a long period in hybernation as being “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, . . . frightening the little children and school attorneys of [defendant school district].”
Yet, the same reasons that cause some of us to remember that opinion prompted University of Wisconsin law professor Nina Varsava to write that judicial writing that turns opinions into a “compelling and memorable narratives” ill serves the “integrity of the judicial role and the legitimacy of the adjudicative process” in a forthcoming law review article. Professor Varsava recognizes that commentators love a lively and engaging style that seems to burnish the judicial reputations of those who write in a striking style all their own. Nonetheless, she advocates a more “even-keeled and restrained institutional style.” She rationalizes this plea by critiquing more stylistic writing as “ethically dubious” because it undermines a judge’s “most fundamental professional responsibilities.” To Professor Varsava, judicial opinions are not in the persuasion business, but instead serve a more pedagogical purpose.
Tellingly, Professor Varsava disagrees with Justice Kagan, who has said that “[t]here’s no rule against fun in [opinions].” The professor argues that “perhaps there should be such a rule.” Indeed, Professor Varsava imagines that judges could be constrained by enforceable regulations in the form of “internal court rules, rules of judicial conduct, or even statutory requirements.”
However interesting Professor Varsava’s take on opinion-writing is, and there is great reason to believe that enforcing it through rules or statutes is a dog that won’t hunt, to use a phrase the professor would surely reject, does her plea for more balanced and straightforward writing hold any value for the appellate advocate?
Unlike a judicial opinion, a brief targets a very specific and limited audience: the panel of judges who will decide the case. In many instances, the panel of judges who will hear the case is often unknown until after briefing is complete and suggests a certain amount of caution. Rhetorical flourishes and witty allusions may make for good reading, but can also detract from the persuasiveness of an otherwise well-founded argument. It may well put off a judge who equates the infusion of colloquial speech into the brief as disrespectful or an attempt to lend cover to a weak case.
To be sure, unlike Professor Varsava’s view of judicial opinions, briefs are written to persuade. To hammer home a point and perhaps make it more memorable, an occasional flashy phrasing or telling metaphor can serve a highly useful purpose. Still, there are limits that lawyers must recognize in an exercise of professional judgment.
Even so, judicial rhetoric can provide some license for flights of fancy in briefs. A Brandeis, writing a judicial opinion, might usefully explain why irrational fears cannot justify the suppression of speech by stating that “[m]en feared witches and burnt women,” but it is difficult to imagine how those words could have been made in a brief – except by quoting and citing the Brandeis opinion.
 Kimble v. Marvel Ent., LLC, 576 U.S. 446, 450 (2015) (emphasis added).
 Id. at 465 (“Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider–Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”)).
 403 U.S. 602 (1971).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).
 Nina Varsava, Professional Irresponsibility and Judicial Opinions, __ Hous. L. Rev. __ (forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.
 Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).
Tuesday, July 27, 2021
Professionalism in Legal Writing – Dos & Don’ts, Part IV
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 fourth post in the series.
Do adopt a clear and persuasive style:
- Do put material facts in context.
The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.
Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:
The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).
The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.
- Do write in a professional and dignified manner.
Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.
I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.
- Do put citations at the end of a sentence.
We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.
- Do use pinpoint citations when they would be helpful.
They’re always helpful.
 Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/
Saturday, July 24, 2021
The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.
1. Make your sentences concise
Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:
The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.
This sentence is far too wordy. Instead of the above statement, simply say:
The Second Amendment protects an individual right to bear arms.
Likewise, consider this example:
The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.
Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:
The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.
That sentence is thirteen words, and it says the same thing.
Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.
2. Focus on coherence and flow
Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages. With this in mind, consider the following statement:
The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.
This paragraph is utter nonsense. It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.
3. Keep the reader’s attention
When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:
The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.
This paragraph is worse than the Friday the 13th movies. Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.
4. Eliminate filler words
Sentences should include only necessary and purposeful words. As such, eliminate words like “just,” “very,” and “really.” Consider the following example:
My settlement offer should really be considered by your client.
Your client should consider my settlement offer.
The second example eliminates the filler words. It gets to the point quickly and directly.
5. Don’t repeat words
If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:
The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.
Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.
6. Don’t suggest unintended meanings or biases
Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases. Consider the following example:
The defendant was mentally retarded and should be held incompetent to stand trial.
Yeah, that’s not good. Instead, say:
The defendant was intellectually disabled and should be held incompetent to stand trial.
Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.
7. Avoid words that convey uncertainty or equivocation
Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:
The court’s decision seems to be based on reasoning that is inconsistent with precedent.
Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:
The court’s decision is based on reasoning that is inconsistent with precedent.
The latter sentence is direct and declarative, and thus more persuasive.
8. Eliminate cliches
When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:
My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”
That sentence is terrible. Instead, say:
My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.
This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.
9. Know what your words mean
Don’t use words that you misunderstand or don’t understand. Consider this example:
The law’s affects will suppress citizens’ First Amendment rights.
Don’t make such a foolish mistake. Instead, say:
The law’s effects will suppress citizens’ First Amendment rights.
And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:
The invidious weather caused the plane crash.
The inclement weather caused the plane crash.
The first sentence would make the reader question the writer’s credibility – for good reason.
10. Lose the adverbs
Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:
The party was extremely loud.
The party was deafening.
The defendant was extraordinarily tired.
The defendant was exhausted.
The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”
11. Lose the adjectives
Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:
The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.
Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:
The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.
The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.
12. Think differently about active versus passive voice
The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.
Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?
The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.
The alleged defamatory statements, which were made by the defendant, are true.
The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.
12. Good judgment leads to good writing
Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.
Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.
Wednesday, July 21, 2021
Justice Cardozo once said that as many as 9 out of 10 legal issues can be resolved by deduction alone. The most useful form of legal deduction is the syllogism, which generally has two premises and a conclusion.
Crack open any book on syllogisms and the author will lead with something like this: All men are mortal; Socrates is a man; thus, Socrates is mortal. This is a categorical syllogism, which is by far the most common in the law. A categorical syllogism sets up a broad proposition (all/some/no X are Y), gives an example (all/some/no of group A are X), then concludes that what is universally true must be true in a particular instance of that universal (all/some/none of group A is X). Convincingly using categorical syllogisms in legal analysis is a matter of hitting on the relevant aspects that characterize a class, then showing that your case does or does not fit in that class.
Most appellate arguments and cases can be reduced to syllogisms. As an exercise, take any United States Supreme Court case and try to reduce it to three sentences—a general proposition, a few specific facts showing that this case fits within (or without) that class, then a conclusion that what is true of the class in general is true (or not) of this case. Marbury v. Madison: the Constitution is supreme over laws passed under it; the Judiciary Act of 1789 conflicts with Article III of the Constitution by adding to the Supreme Court’s original jurisdiction; therefore, that part of the Judiciary Act conflicting with Article III is void. McCullough v. Maryland: The federal government is supreme over the state governments; if the states could tax the federal government, they would be supreme over it; therefore, the states cannot tax the federal government. Wickard v. Filburn: Congress has the power to regulate both interstate commerce and things affecting interstate commerce; growing one’s own wheat on a farm for personal consumption affects the interstate market for wheat; therefore, Congress can regulate growing one’s own food for personal consumption.
Courts often reduce counsels’ arguments to syllogisms to zero in on points of disagreement. In Blasland, Bouck & Lee v. City of North Miami, North Miami had sued a contractor (Blasland) that it had hired to clean up a Superfund site, believing that the cleanup did not meet federal standards. In a previous lawsuit involving the same site, it had gotten a favorable judgment against other defendants who had met federal standards in their cleanup efforts. The court later offset a judgment against Blasland with the prior judgment, reasoning that North Miami’s recovery would otherwise be duplicative. North Miami appealed, saying that the setoff was improper. The Eleventh Circuit broke down the City’s argument into a series of syllogisms—simplified here—to explain precisely where it believed that the City’s reasoning went awry: 1. Duplicative awards justifying an offset exist only if the recovery in the second suit was available in the first suit; 2. The claim against Blasland was not available in the first suit; 3. Therefore, the award against Blasland was not duplicative and it is not entitled to an offset. The Court held that this argument was a “fine syllogism, with flawlessly connected episyllogisms, but its initial premise is flawed. The flawed premise is that . . . duplication of awards only exists if what has been awarded in the present case rightfully could have been recovered in the prior litigation. That is not [the] law.”
The best attorneys often use syllogisms to the same effect. To illustrate, I looked at briefs from prominent practitioners in the U.S. Supreme Court in 2019 and 2020. For example, Kannon Shanmugam of Paul, Weiss, used it in a petition for certiorari review in C.H. Robinson Worldwide, Inc. v. Miller, 20-1425 (with citations removed to aid readability):
What is more, the court of appeals badly misconstrued this Court's decision in American Trucking Associations, Inc. v. City of Los Angeles. The court's attenuated chain of reasoning went like this: In American Trucking Associations, the Court stated that the FAAAA's preemption provision “draws a rough line between a government's exercise of regulatory authority and its own contract-based participation in a market.” The FAAAA's preemption provision includes common-law claims. Thus, because Congress also used the term “regulatory authority” in the safety exception, it must also include common-law claims.
He then used that syllogistic framework to attack that reasoning:
That syllogism is multiply flawed. As a preliminary matter, the Court in American Trucking Associations was not interpreting the safety exception-indeed, its only mention of the safety exception was to deem it “not relevant here.” If anything, any hints from American Trucking Associations cut the other way. The governmental action at issue there was a core exercise of the “regulatory authority of a State”: the “Board of Harbor Commissioners” (an administrative agency) enforced a “municipal ordinance” (a positive-law enactment), the violation of which was “a violation of criminal law” (enforced by state or local officials). It is little wonder that the Court described the governmental action there as “regulatory authority.”
Two former members of my office—Tyler Green and Tera Peterson—used it to good effect in an amicus brief supporting Arizona in McKinney v. Arizona, 589 U.S. ____ (2020):
McKinney's argument can be succinctly stated as this syllogism:
- New rules (like Ring) apply to cases on direct review.
- His case is again on direct review because the Arizona Supreme Court's actions after the Ninth Circuit's conditional grant of habeas relief reopened his twenty-year-final judgment.
- Therefore, Ring's new rule applies to his case.
The minor premise in McKinney’s syllogism is invalid. So his conclusion is invalid too. The Arizona Supreme Court did not reopen his case—or transform his final sentence into a non-final one—by correcting a non-Ring error. Concluding otherwise would gut Teague’s finality framework, which protects the States’ criminal judgments from unwarranted federal intrusion. It would make those judgments perpetually subject to reopening: Every conditional habeas grant would force States to relitigate convictions under every new procedural rule decided since the original conviction became final.
Finally, Jeff Fisher of Stanford University included this in his winning brief in Ramos v. Louisiana, 590 U.S. ___ (2020) (again, with citations removed):
For decades, this Court has addressed questions like the one here by asking whether the Fourteenth Amendment's Due Process Clause “incorporates” the relevant protection of the Bill of Rights. Applying that test, a simple syllogism establishes that the Due Process Clause incorporates the Sixth Amendment's unanimity requirement against the states. First, the Court held long ago that the Jury Trial Clause applies to the states. The Clause is “fundamental to the American scheme of justice.” Second, “if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.” This Court first crystallized this concept in Malloy v. Hogan. . . . The Court reiterated this concept in McDonald. . . . Just last Term, this Court reaffirmed this rule without a dissenting vote. . . . .This reasoning controls here.
I could go on. That’s just a sampling of prominent practitioners in the span of a single year. But it makes the point. The syllogism is a powerful tool that each attorney should use not just to think through cases, but to explain their and others’ reasoning.
 Judge Aldisert agrees. Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 2, 12.
 Syllogisms can be complex, with one conclusion becoming a premise in the next, as a stacked set leads (eventually) to the desired conclusion. These are called polysyllogisms and episyllogisms. More often, they are simplified by implying rather than spelling out one of the premises. These are called enthymemes. See, e.g., Fulton v. City of Philadelphia, (2021) (Gorsuch, J., concurring).
 Syllogisms can also be hypothetical or disjunctive. A hypothetical syllogism consists of at least one conditional (if-then) premise that necessarily leads to the conclusion (if X then Y; X; therefore, Y; or if X then Y, if Y then Z, therefore if X then Z). Id. at 34. And a disjunctive syllogism sets up two options (either X or Y), says which one attains (X), then concludes that the other is not (therefore, not Y). Patrick J. Hurley, A Concise Introduction to Logic 34 (10th ed. 2007).
 Id.; Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 4 (describing syllogistic logic as “[w]hat is true of the universal is true of the particular.”).
 Judge Aldisert advocates for this exercise and gives several examples. Logic for Law Students, 69 U. Pitt. L. Rev. at 4.
 283 F.3d 1286 (11th Cir. 2002).
 Id. at 1295-96.
 Id. at 1296.
Sunday, July 18, 2021
This month marks 80 years since Robert H. Jackson took the bench as a U.S. Supreme Court justice. Students of the Court remember him as one of the most elegant writers to grace the pages of U.S. Reports. Jackson also notably took a leave of absence from the Court to serve as chief prosecutor at the Nuremberg war crimes trial, an extracurricular activity that generated some controversy.
His service on the Court and at Nuremberg overshadows contemporary memory of his earlier service both as Attorney General and as Solicitor General. It was in the latter role, as an advocate before the Court on which he would eventually sit, that caused no less a luminary than Justice Louis Brandeis to suggest that Jackson should serve as Solicitor General for life.
Yet, despite such high praise, Jackson, at the time newly a justice, famously wrote a 1951 article on oral advocacy that expressed doubt about his effectiveness as an advocate. In it, he revealed that he composed three arguments each time he went before the bench. The first argument anticipated a well-planned presentation designed to hit all the critical points needed to prevail and was, of course, presented in an inexorably logical order. The second one did not match the care taken to construct the first one, because it was the argument actually made in court. Jackson described that argument as “interrupted, incoherent, disjointed, disappointing.” The third argument was the “utterly devastating argument that I thought of after going to bed that night.” In other words, the one he felt he should have made.
Even with his experience, Jackson was at a loss on how to avoid the disruption caused by justices “much given to interrogation.” Although the hot bench familiar to him was markedly cooler than that of today’s Supreme Court, a flurry of inquiries on topics outside the flow of his intended argument induced Jackson to adopt a categorical opposition to splitting an argument with a co-counsel.
He explained his position was a product of experience in a case where he was supposed to cover the statute in question while his co-counsel focused upon the regulatory scheme of the agency that employed him. When he rose to speak, the justices peppered him with questions about the regulations. He had not prepared that part of the case and had not anticipated that the case could turn on it. By the time his co-counsel took over, the Court had exhausted their interest in the regulations and now proceeded to ask about the statute. The planned presentation was rendered asunder.
Much of Jackson’s advice seems like an artifact of an earlier era. He repeatedly advises that the facts bear careful and scrupulous description and yet warns that a factual description that attempts to reargue findings of fact or a verdict will be met with “embarrassing judicial impatience.” He also suggests that an advocate should not assume that the panel is familiar with the statute at issue. Modern practice, in contrast, safely presumes that the judges have read the briefs, understand the facts, and the applicable statute, even if argument must focus on some aspect that determines the question presented. Jackson also warns that defeat can be snapped from the jaws of victory in rebuttal, suggesting that the “most experienced advocates make least use of the privilege.” That advice seems too uncompromising. While there are times that waiver of rebuttal makes good sense, experienced advocates often make productive use of that opportunity.
While some of Jackson’s advice appears dated and tied to a different era of oral advocacy, other points confirm that some things never change. Tying your argument to a judge’s extrajudicial writings or speeches, Jackson says, “is a matter of taste,” but usually “bad taste.” He denounces memorized orations, brief-reading, and rambling discourses as inappropriate.
Consistent with the most common advice an oral advocate receives, Jackson emphasizes comprehensive preparation. Knowing the facts, the cases, the context, and the flow of relevant doctrine is a given. Opening with a clear presentation of why the facts or law or a combination of the two inexorably lead to a favorable decision sets the stage for the questions that will likely follow. You want those questions to play to your strengths and to set the stage so that the bench poses difficult questions that exposes weaknesses in the contrary argument being made by an opponent.
Jackson also recognizes that questions from the bench may appear hostile to an advocate’s position. He warns against adopting that assumption, though, because the questions may seek to do nothing more than sharpen the advocate’s position.
A court of last resort will have a consistent group of judges over a significant period of time. Much like the U.S. Supreme Court of today, there may be some fissures that sharply divide the justices. Jackson acknowledges that this will often present a dilemma to an advocate. It apparently did to him. For that reason, he states plainly that he has no advice and suggests reliance on wit.
Jackson’s article amounts to something from a time capsule, undoubtedly presenting a thoughtful and practical introduction to oral advocacy as it was practiced at the highest levels of his day. And, while some aspects of oral advocacy remain the same, others have changed significantly. One thing has not. Jackson ends his article with a parable about three stone masons asked about what they were doing. The first responds that he is doing a job. A second explains that he is carving a pattern. The third indicates he is making a cathedral. He closes by saying that “it lifts up the judge’s heart when an advocate stands at the bar who knows he is building a Cathedral.” Successful advocacy forms the facts and law into a work of architecture. It did so then and does so now.
 Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A J. 801 (1951).
Saturday, July 17, 2021
In a recent meeting about teaching Legal Writing, an experienced appellate advocate mentioned practicing “power poses” as part of her prep for an oral argument at the Ninth Circuit. While her comment was a nice way to add humor and humanity to the conversation, the idea of using power poses to add confidence before oral argument stuck with me long after the meeting concluded.
I decided to check out the TED Talk on power poses the advocate mentioned in our meeting: Social Psychologist and Harvard Business Law Professor Amy Cuddy’s TEDGlobal 2012 Your Body Language May Shape Who You Are. https://www.ted.com/talks/amy_cuddy_your_body_language_may_shape_who_you_are. The TED Talk website has a disclaimer at the beginning of Prof. Cuddy’s talk, explaining, “Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility.” Id. Keeping in mind the debate about the science behind some of Prof. Cuddy’s premises, I decided to focus more on her overall points about body language.
Prof. Cuddy’s general theme is that "power posing" by standing or sitting in a posture of confidence--even when we do not feel confident--can boost subjective feelings of confidence and thereby possibly impact success. Id. She initially focused on non-verbal communications, especially posture, among her MBA students. Cuddy noticed her students who made themselves smaller, with hunched shoulders and crossed arms and legs, tended to earn lower grades than the students whose posture took more space. Looking at controlled human subject students and primates with her collaborator, Prof. Dana Carney of Berkeley, Cuddy also saw a connection between testosterone and cortisone levels and use of power poses like the “Wonder Woman” and “Victory” stances with arms outstretched. Thus, Prof. Cuddy hypothesized people who sit hunched over before a job interview, or in our case an oral argument, will have less confidence than those who stand for a few minutes privately in a power pose before an important talk. See id. Prof. Cuddy stressed she does not believe the power poses are for use “with other people” or to have any impact on substance, but instead can help us feel more comfortable with ourselves and thus preform better. Id.
Commentator Kate Torgovnick May summarized Prof. Cuddy’s point as: “[B]efore heading into a job interview, giving a big speech or attempting an athletic feat . . . everyone should spend two minutes power posing [by] adopting the stances associated with confidence, power and achievement — chest lifted, head held high, arms either up or propped on the hips.” Kate Torgovnick May, Some Examples of How Power Posing Can Actually Boost your Confidence (Oct. 1, 2012) https://blog.ted.com/10-examples-of-how-power-posing-can-work-to-boost-your-confidence/. Torgovnick May provides several testimonials from people who successfully used “Wonder Woman” or other power poses before important classes, interviews, and presentations. See, e.g., id. (“It’s nice to see that there’s scientific support for Oscar Hammerstein’s King and I lyrics: ‘Whenever I feel afraid, I hold my head erect and whistle a happy tune, so no one will suspect I’m afraid …The result of this deception is very strange to tell, for when I fool the people I fear, I fool myself as well.’”)
In bringing these ideas back to my own life, and to our Appellate Advocacy blog, the mom in me could not help but remember my own lawyer mother teaching my sister and me to walk with books on our heads. My mom--like so many other parents—wanted her girls to stand up straight and have confidence. I regularly chide my very tall sons for hunching over, admonishing them to “put back” their shoulders and “stand up straight.” While the scientific community debates the precise reliability of Prof. Cuddy’s work, I know standing with confidence can indeed help me feel and look more confident in court and in the classroom.
Therefore, I recommend you check out Prof. Cuddy’s TED Talk, as well as the debate on her research. And the next time you are especially nervous about an oral argument or presentation, spend two minutes in a power pose. Hopefully, you can smile thinking about the parent, auntie, teacher, or other adult who told you to “stand up straight” years ago. And perhaps this technique will give you increased confidence too.
Saturday, July 10, 2021
Excellent writers know how to write for their audience, not for themselves.
Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.
What criteria would you use to identify the most persuasive appellate briefs?
The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.
Below are five writing tips to maximize the persuasive value of your brief.
1. Use plain language
[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”
Justice Antonin Scalia
When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.
Consider the following example:
As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.
If you were a justice, how would you react to reading this nonsense?
Consider the next example:
The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.
It should be obvious that the second example, although far from perfect, is better than the first.
Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.
2. Be concise
Most people don't like others who talk too much. Judges are no different.
If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.
Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.
Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.
3. Capture the court’s attention
Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.
Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:
This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.
That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:
On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.
Again, it should be obvious why the second example is better.
An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency. All law students should read this brief.
4. Confront the weaknesses in your case and explain why they do not affect the outcome you seek
No one likes a person who is dishonest or evasive.
Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority. And they explain why those weaknesses do not affect the outcome that they seek.
Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.
5. Don’t make ‘red flag’ mistakes
When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:
- Spelling and grammatical errors
- Long sentences (i.e., over twenty-five words)
- Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
- Extremely long paragraphs (a paragraph should never occupy an entire page)
- Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
- Demeaning the lower court or your adversary
- Failing to follow the local court rules
- Including too many block quotes
- Citing overruled authority
- Failing to cite unfavorable authority
- Misrepresenting the record
- Citing legal authority incorrectly
- Requesting a remedy that the court has no power to grant
- Telling the court what it must do, rather than respectfully requesting what it should do
Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.
Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.
Simply put, great writers make great advocates.
Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
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 News and Opinions:
It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.
On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes. More from Bloomberg.
Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.
Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures. More from Bloomberg.
Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim. More from Courthouse News.
On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.
Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state. More from Scotusblog.
Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention. More from Bloomberg.
On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act. The ruling will make it more difficult to contest state-imposed election regulations. More from Scotusblog.
Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors. More from Scotusblog.
On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win. More from Bloomberg.
In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now. See the piece at Law.com.
Federal Appellate Court News and Opinions:
This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional. More from Law360.
Appellate Practice Tips and Pointers:
Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.
Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.
The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022. Application information HERE.
Tuesday, June 29, 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 third post in the series.
Do present an honest, accurate position:
- Do include all relevant facts.
Appellate counsel must provide the court all the facts that are relevant to the issues raised in the appeal—yes, even the bad facts. Of course, we want to use word choice, sentence structure, and other techniques to deemphasize the facts that are unfavorable to our client and highlight those that are favorable. And while appellant’s counsel might be tempted to save those “bad” facts for a reply brief—don’t. First, we have an ethical obligation to provide the court all of the relevant facts. Second, it is better to present those “bad” facts first and in the way that is best for our client than to have opposing counsel bring them out first. Finally, disclosing the “bad” facts may enhance our credibility with the court.
- Do cite the record accurately.
The Federal Rules of Appellate Procedure require the appellant’s brief to contain “a concise statement of the case setting out the facts relevant to the issues submitted for review . . . with appropriate references to the record (see Rule 28(e).” Rule 28(e) provides:
References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:
Answer p. 7;
Motion for Judgment p. 2;
Transcript p. 231.
Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
Accurate record cites are important. They allow the court to confirm the accuracy of our representation of the facts, which again, allows us to build credibility with the court. Accurate record cites also allow the court to confirm that we preserved for appeal the issues we raise. Failure to include record cites may result in sanctions.
- Do disclose relevant authority, including adverse controlling authority.
Of course, we’re going to disclose relevant authority that supports our arguments. But what do we do about unfavorable authority that doesn’t control? (We’ll discuss controlling adverse authority in a minute.) If our opponent is likely to cite the unfavorable authority, or the court is likely to discover it, then I think the best approach is to disclose it and find a way to distinguish it. Just as with “bad” facts, disclosing adverse authority allows us to shape how the court views that authority.
We have an ethical duty to disclose adverse controlling authority. For example, the Model Rules of Professional Conduct provide, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Counsel ignored controlling precedent in Gonzalez-Servin v. Ford Motor Co., which led to an interesting set of photographs in the Federal Reporter. After noting counsels’ failure to disclose controlling adverse authority, the court wrote:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.”
The court then included these images in its opinion:
- Do update all cited authorities and exclude any reversed or overruled cases.
Modern research tools make “Shepardizing” authorities a relatively simple task—far less laborious than for those of us who learned using books. But, we can’t just rely on the flags or signals that appear on your screen. We must read the authorities to ensure the flag or signal is accurate for the point upon which we wanted to rely.
An honest, accurate writing style builds credibility and makes our reader’s job easier.
 Fed. R. App. P. 28(a)(6).
 Fed. R. App. P. 28(e).
 E.g. Dennis v. Intl. Paper Co., 58 F.3d 636 (5th Cir. 1995) (“Dennis's brief does not comply with this rule. We are satisfied, based upon the evident carelessness in which Dennis's attorney has presented this appeal and its obvious deficiency on the merits, that Dennis's attorney has persisted in prosecuting a meritless appeal in contravention of § 1927. We find, therefore, that some measure of sanctions is appropriate.”); Plattenburg v. Allstate Ins. Co., 918 F.2d 562, 564 (5th Cir. 1990) (“This brief also fails to make even one citation to the record where relevant . . . .”)
 ABA Model Rule 3.3(a)(2).
 662 F.3d 931 (7th Cir. 2011).
 Id. at 934, quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Tuesday, June 22, 2021
When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves. But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia. Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling. Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.
The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.
Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.
Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.
No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.
 In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).
 593 U.S. __ (2021).
 494 U.S. 872 (1990).
 See Gentithes, supra note 1, at 341.
 See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).
Sunday, June 20, 2021
In Fulton v. City of Philadelphia, the United States Supreme Court confronted the question of whether the City of Philadelphia could deny a contract to a Catholic foster care agency (Catholic Social Services) because the agency refused to provide service to same-sex couples. The city argued that the agency's policy violated the city’s anti-discrimination law, which prohibits discrimination based on, among other things sexual orientation.
By way of background, in Employment Division v. Smith, the Court held that neutral laws of general applicability that incidentally burden religion do not violate the Free Exercise Clause of the First Amendment. Writing on behalf of the majority, Justice Antonin Scalia relied in part on Reynolds v. United States to hold that the Free Exercise Clause does not permit religious organizations to receive exemptions from generally applicable laws. Justice Scalia reasoned that to allow such exemptions “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Justice Scalia held that religious exemptions could be granted only when an alleged violation of religious liberty was coupled with a violation of another constitutional right. For example, in Wisconsin v. Yoder, the Court held that the parents of an Amish child were exempt from a generally applicable law requiring all children to attend public school until the age of sixteen because the law infringed on both the parents’ religious liberty and the fundamental right to direct the upbringing of their children.
The Court’s decision in Smith has proved quite controversial, as some argue that it is inconsistent with the original purpose of the Free Exercise Clause. And Smith has been implicated in recent disputes involving the balance between accommodating individuals’ religious beliefs and protecting citizens against discrimination. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a cakeshop owner refused to design a custom wedding cake for a same-sex couple, arguing that doing so would violate his religious beliefs. The State of Colorado argued that the cakeshop owner's refusal violated its generally applicable anti-discrimination law, which prohibited discrimination based on sexual orientation. The facts in Masterpiece Cakeshop arguably presented the Court with the issue of whether Smith should be overruled.
But the Court avoided the question.
Instead, it ruled on very narrow grounds, holding that the Colorado Civil Rights Commission had demonstrated hostility toward the cakeshop owner’s religion when addressing his claim. As a result, Masterpiece Cakeshop resolved nothing. The decision provided no clarity or guidance to courts and citizens regarding the Free Exercise Clause. It was a missed opportunity.
Not surprisingly, three years later in Fulton, the same issue arose again when Philadelphia denied a contract to Catholic Social Services because it refused to offer services to same-sex couples. As in Masterpiece Cakeshop, the Court was faced with the question of whether Smith should be overruled.
Yet again, the Court avoided the question.
Instead, in an opinion by Chief Justice Roberts, the Court issued a very narrow decision in favor of Catholic Social Services, holding that Philadelphia’s anti-discrimination law was not generally applicable because the city retained the discretion to grant exemptions to the law. This led to a narrow, unanimous ruling for Catholic Social Services. But again, the decision failed to resolve the underlying question of whether Smith should be overruled and avoided addressing how to balance an individual’s right to religious liberty against another individual’s right to be free from unlawful discrimination. The result is that one of the most sacrosanct constitutional rights – the free exercise of religion – is now marred in constitutional purgatory, with no clarification or guidance about the scope of this right and the limits on state power.
Fulton was legal gymnastics at its finest. And politics at its worst.
Sadly, the decision in Fulton is yet another example of Chief Justice Roberts's disappointing jurisprudence.
To be clear, by all accounts Chief Justice Roberts is a brilliant and ethical jurist – and a great person. Roberts is deeply committed to preserving the Court’s institutional legitimacy and to avoiding the perception that politics and ideology motivate the Court’s decisions. To that end, Roberts strives to achieve consensus on the Court and avoid controversial 5-4 decisions. To reach consensus, Roberts seeks to decide each case on the narrowest ground possible, which often has the effect, as in Masterpiece Cakeshop and Fulton¸ of rarely addressing the fundamental constitutional issues that undergird many cases and, concomitantly, failing to clarify the law.
The ugly truth about this approach is that it causes precisely what Chief Justice Roberts hopes to avoid: it politicizes the Court, undermines its institutional legitimacy, and destabilizes the rule of law. And it causes Roberts to become precisely what he disavows: a political actor.
As stated above, it is politics at its worst.
Unfortunately, even a cursory examination of Roberts’s jurisprudence in recent years reveals that his decisions often result from political calculations rather than principled constitutional considerations.
Indeed, Roberts’s decision in Fulton was eerily reminiscent of his decision in National Federation of Independent Investors v. Sebelius, where the primary issue confronting the Court was whether the Affordable Care Act violated the Commerce Clause. Roberts agreed that the Act violated the Commerce Clause, yet after initially voting to invalidate the Act, Roberts reversed course and concluded that the Act was a proper exercise of Congress’s taxing power. It was apparent that Roberts was trying to find a way – any way – to avoid issuing a decision that might compromise the Court’s legitimacy, lead to a divisive decision, and be perceived as political.
Yet, Roberts created precisely that result. The Court’s legitimacy was damaged because the decision was so obviously based on political calculations, not constitutional principles.
This is not the first time that Roberts has engaged in legal gymnastics that elevate politics over the rule of law and provide no clarity, guidance, stability, or predictability on important legal issues affecting civil rights and liberties. For example, in June Medical Services v. Russo, Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. Roberts argued that, based on the Court’s decision in Whole Women’s Health v. Hellerstadt, where it invalidated a nearly identical law in Texas (although Roberts dissented), principles of stare decisis required him to invalidate the Louisiana law.
But Roberts’s jurisprudence shows that he has an on-again, off-again relationship with stare decisis. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, which addressed a union’s ability to collect fees from non-union members, Roberts joined the majority in overruling Abood v. Detroit Board of Education, which had been valid law for over forty years. And in Citizens United v. FEC, Roberts joined a 5-4 majority that invalidated a federal law restricting independent expenditures from corporations; in so holding, the Court overruled Austin v. Michigan Chamber of Commerce, which held that restrictions on corporate speech did not violate the First Amendment. Thus, Roberts’s reliance on stare decisis in June Medical Services was about as disingenuous and manipulative as it gets. Simply put, when a concern for institutional legitimacy triumphs over the rule of law, the result is an unprincipled jurisprudence that at its core is political.
If Chief Justice Roberts values the Court’s institutional legitimacy, he should prioritize the rule of law and base his decisions on reasonable interpretations of the Constitution. He should stop avoiding the real issues that are presented in each case. He should make decisions based on what he believes, not on how others may react to a particular decision. In doing so, Roberts would demonstrate that he is faithful to the Constitution and the rule of law, and that his decisions are based on principle, not politics.
To date, sadly, Chief Justice Roberts has become the Court’s most political actor. And the Court is unquestionably a political institution.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 See id.
 494 U.S. 872 (1990).
 See id.
 See id.
 406 U.S. 205 (1972).
 See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners, available at: 20200602142513866_19-123 CCJ tsac.pdf (supremecourt.gov)
 138 S. Ct. 1719 (2018)
 See id.
 See id.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 567 U.S. 519 (2012).
 See id.
 2020 WL 3492640 (2020)
 138 S. Ct. 2448.
 558 U.S. 310 (2010).
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Sunday, May 23, 2021
Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks. This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.
So, here we go again.
Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.
This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support. In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.” Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text. Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.
Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.” The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.” These scholars are correct – Roe was one of the worst decisions of the twentieth century.
Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse. In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks. In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother. In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.
Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.
But the states opposing abortion did. Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.
The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.
As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.
Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.
Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.
That will end the inquiry and the uncertainty.
But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.
Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.
Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.
 Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).
 410 U.S. 113 (1973).
 Id; 381 U.S. 479 (1965).
 Id. at 484.
 410 U.S. 113.
 Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner
 505 U.S. 833 (1992).
 136 S. Ct. 2292 (2016); 2020 WL 3492640.
Tuesday, May 18, 2021
We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.
The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).
Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.
The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.
In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.
If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).
Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.
(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)
Sunday, May 16, 2021
On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.
Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.
1. The jury deprived Chauvin of a fair trial
Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.
During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:
Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout. You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”
At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.
Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.
The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:
“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.
Mitchell answered “no” to both questions.
At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.
2. Failure to sequester the jury
Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached. Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:
Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury.
And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:
There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.
Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.
3. Failure to Change Venue
Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.
That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.
4. Insufficiency of evidence on one or more of the charges
The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.
Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.
But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.
And for the reasons stated, the conviction should be overturned.
Process matters – regardless of Chauvin’s egregious and deplorable conduct.
 Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation
 See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post
 Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY
 See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics
 Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)
Saturday, May 15, 2021
While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship. Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website. See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).
Reardon aptly concludes: “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.” Id. As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.” Id.
As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively. In so doing, we can also use our privilege to serve as allies for underrepresented groups.
How do we combine communication with allyship? Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.
Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful. Id. Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.” Reardon, Inclusive Language Is Allyship.
We can also connect our language to allyship with a full understanding of what being an ally can entail. As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society." Samantha-Rae Dickenson, What Is Allyship? (Nat’l Inst. of Health Jan. 28, 2021). “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.” Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).
As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.”
I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others. If you are interested in seeing more of the 2Civility website and programs, you can subscribe here for the Commission’s weekly newsletter.
Tuesday, May 11, 2021
The Supreme Court’s recent decision in Jones v. Mississippi purported to do all the right things with respect to precedent cases. The majority claimed to uphold precedents like Miller v. Alabama that highlighted the intransigence of youth and the need for courts to consider whether a juvenile defendant is permanently incorrigible before sentencing them to life without parole. It then noted Montgomery v. Louisiana’s holding that Miller’s rule was substantive, and therefore applied retroactively on collateral review. Yet in the opinion’s fourth footnote, the majority purported to limit Montgomery’s holding, stating that because it was in “tension” with other retroactivity cases, Montgomery “should not guide the determination of whether rules other than Miller are substantive. Essentially, the majority acknowledged its disagreement with the holding of Montgomery—that Miller’s rule was substantive and not procedural—but refused to overrule it, saying that it ought to be a one-of-a-kind precedent courts in future retroactivity cases should feel free to ignore. Perhaps unsurprisingly, the Court then rejected the juvenile petitioner’s argument that under Montgomery a court could only sentence him to life without parole after making and on-the-record finding that he was permanently incorrigible.
Will footnote four in Jones come to rival other famous fourth footnotes in Constitutional jurisprudence? That all depends on one’s conception of stare decisis and its meaning. It might create categories of precedents not just limited to their facts, but limited in their peculiar readings of long-standing doctrinal puzzles. Sure, one might say, Montgomery still stands as a precedent holding that Miller retroactive, but its comments on retroactivity doctrine and the distinction between substantive and procedural rules do not extend to future cases. Thus, Montgomery still exists, but has limited value in the development of retroactivity doctrine. It stands as a unique form of zombie precedent that appears all but dead, yet stills lurk the corridors of the United States Reports.
Several Justices challenged footnote four’s approach, though they raised conflicting critiques of the zombie precedent model. Justice Thomas’s concurrence and Justice Sotomayor’s dissent used differing versions of stare decisis to make their points. First, Justice Thomas cited to his opinion Gamble v. United States that would permit overruling any “demonstrably erroneous” precedent, without further analysis, to argue that Montgomery could not survive and should be directly overruled. As I’ve noted in an earlier post, that trend towards a weaker version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone, has taken root on the Court in the last decade, though it is yet to garner a clear majority of the Justices’ support. On the other hand, Justice Sotomayor relied upon a stronger conception of stare decisis traceable to 1992’s Planned Parenthood v. Casey. That conception of stare decisis only permits the Justices to overrule based upon special justifications beyond “poor reasoning,” such as unworkability, special reliance interests, new legal developments, or vastly changed facts. Applying those possibly justifications, Sotomayor and her colleagues saw no reason to overrule Montgomery’s retroactivity holding, then chided the majority for seemingly overruling it nonetheless.
The Jones majority’s effort to render Montgomery a zombie precedent introduced a new battle front in the larger ongoing war over the future of stare decisis. Justices that support both the strong and weak version of stare decisis should take note of the possibilities and perils that such zombie precedents present. Jones’s footnote four has the potential to become a flashpoint in the stare decisis debate for years to come.
 Jones v. Mississippi, 141 S.Ct. 1307, 1317-19 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1317 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1317 n. 4 (2021).
 Jones v. Mississippi, 141 S.Ct. 1307, 1321 (2021).
 See United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938).
 Jones v. Mississippi, 141 S.Ct. 1307, 1323 (2021) (Thomas, J., concurring).
 505 U.S. 833, 854-55 (1992) (plurality opinion).
 For more on the competing strands of the stare decisis doctrine, see Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 98-112 (2020).
 Jones v. Mississippi, 141 S.Ct. 1307, 1330, 1335-36 (2021) (Sotomayor, J., dissenting).