Friday, December 6, 2019
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting
US Supreme Court Opinions and News:
- A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week. See more from CNN and Reuters.
- After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
- This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot. See NYT OpEd here.
- The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.
Federal Appellate Court Opinions and News:
- A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association. See NYTimes article here.
- The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida. See AJC article here.
State Appeals Court News
- The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign. The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word. See ABA Journal story here.
Tuesday, December 3, 2019
On the Appellate Advocacy Blog, we typically focus on advocacy in appeals. This is the typical understanding of what an appellate attorney does - handle appeals. But in reality, an appellate attorney wears many different hats depending on the context of the representation.
It is important, from both an ethical and practical standpoint, to define the scope of each representation. Ethically, Rule 1.2(c) of the ABA Model Rules of Professional Conduct allows an attorney to “limit the scope of representation if … reasonable under the circumstances and the client gives informed consent.” The attorney must also communicate to the client “[t]he scope of the representation and the … fee and expenses ….” (Rule 1.5(b)).
Practically, an appellate attorney needs to define the scope of the representation so they can adequately meet their client's needs. Each case has different requirements, and if those requirements are not defined and communicated clearly, necessary work can either fall through the cracks or be unnecessarily duplicated.
In my practice, I try to have this scope discussion as early as possible, usually during conflicts checks. For new clients, I often start with setting out the different models under which I typically work as an appellate specialist. These are:
- “Embedded” Appellate Specialist. The appellate specialist works with the trial team from the beginning of the case. This includes drafting pleadings, pretrial motions, limines and charges, handling motion hearings, directed verdicts, charge conferences, and then any resulting appeal. In short, this model has the appellate specialist overseeing the legal aspects of a case from beginning to end. This model permits the trial team to focus on factual development and trial strategy, and the appellate specialist to focus on legal argument and error preservation. The model is typically used in complex matters, cases with large potential exposure, and cases that the parties intend to appeal no matter the result. Primary responsibility for the case usually shifts from trial counsel to appellate counsel after trial, although trial counsel may, in some cases, remain in a "first chair" position throughout.
- “Consulting” Appellate Specialist. The appellate specialist steps in primarily to observe and assist in a secondary capacity. Sometimes insurance underwriters or corporate clients will become concerned when a case seems to be “going south,” or when a case involving a significant potential verdict approaches trial. In those cases the appellate specialist is usually contacted shortly before trial, and serves as an additional briefing and research consultant for the trial team, while observing and sending daily reports to the client. This helps prepare the attorney for any necessary post-judgment work, because they become familiar with the case through the daily observations and reporting, and helps make sure any issues identified as potential appellate points are preserved for future appellate review. In other cases, the specialist may not be contacted until after the appeal or post-judgment motions are filed, and serves primarily to test, refine, and tighten arguments raised by trial counsel through the drafting process and in mooting the arguments prior to any hearings or oral argument.
- “Traditional” Appellate Specialist. The appellate specialist is brought in to handle the appeal post-trial. This traditional model has the appellate specialist review the same record that the appellate court will review, and present a new, objective view of the merits of the case and the likelihood of success of any appellate point. The specialist takes the record as they find it, and then helps with postjudgment motions and essentially takes over the case on appeal.
By presenting these models, I can then discuss with the client whether they need to use my services in line with one of those models or as something of a mix. That discussion then defines what work needs to be done, how that work should be prioritized, and who will bear responsibility for that work. I can then either include that specific scope in the letter of representation, or state a more general scope with some comfort in the knowledge that we have a set understanding of what that means.
In some cases, it may be necessary to go further and specifically state what role you will not be filling in a case. In cases involving insurance coverage, for instance, it is a good practice to specifically state that you are not coverage counsel, and that you are not choosing points on appeal based on their ultimate effect on coverage in the case, unless you are specifically instructed to do so by the client. In cases where there is already suspicion or acrimony between the client and trial counsel, a disclaimer that you are not going to advise on any malpractice theories may also be wise in order to preserve your focus on the appellate issues in the case.
However you ultimately define the scope of your engagement, the discussion with your client to set that scope will help more clearly define the client's needs and expectations in both of your minds. Only through that type of discussion can you be sure that those needs are met. Both you and the client will benefit.
(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)
Saturday, November 30, 2019
The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?
1. Good amicus briefs make original arguments.
Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?
You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:
Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.
This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?
Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.
2. Attract the Court’s attention at the beginning of the amicus brief.
Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.
Indeed, interviews with former Supreme Court clerks confirm this fact:
To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.
Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.
3. Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).
Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.
4. Use social science data to support your arguments.
Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:
Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.
For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.
5. Focus on specialized areas of the law.
Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”
Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.
6. Remember that your goal is to assist the Court in reaching a fair decision.
Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.
7. Ensure that your writing is of the highest quality.
An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.
Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.
Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.
 Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).
Wednesday, November 27, 2019
Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts. When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances. As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.” In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable. Acting in this manner seems fair to everyone and keeps people we deal with content. When we act differently, we call it a surprise, which can be a good thing or a bad thing.
Courts use prior decisions or precedents in much the same way, as models for later decisions. Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction. Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not. Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors. Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges.
Courts around the world consider precedent in varying degrees. We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.
Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues. Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable. In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given. One decision alone is said to make law that must be followed in subsequent cases.
On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law. A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight. These decisions do not bind the court to a particular interpretation of the law, nor do they make law. In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.
The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.
Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct. For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis. The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions. Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts. Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake. The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:
Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right. Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.
American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied. United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant. He explained, “[S]tare decisis is not an end in itself. It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”
Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law. In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision. Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law. The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions. These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past. Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.
 The author has published articles on the value of precedent and a book chapter that addresses the topic. This post draws directly from those publications. See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).
. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).
http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts). See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).
. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”). But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998). The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53. See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”).
. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).
 La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).
 I have referred to this behavior as “systemic respect for jurisprudence.” Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.
Friday, November 22, 2019
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting
US Supreme Court Opinions and News:
- After years in court, including one previously denied Supreme Court petition in 2015, Google v. Oracle will be heard by the Supreme Court. The dispute centers on the use of application programming interfaces (also called software interfaces or APIs), specifically whether the Copyright Act protects Oracle’s API that Google admits to using. For a much more astute summary and explanation, see the New York Times and National Law Journal.
- This week’s New Yorker included an article on Justice Elena Kagan. See it here.
Federal Appellate Court Opinions and News:
- The Fourth Circuit held that suspicionless searches of travelers’ digital devices violates the US Constitution. The ruling holds that US border agents need reasonable suspicion, though not a warrant, to search smartphones and laptops at US ports of entry. See coverage in Reuters; CNN; or USNews.
- A Federal Court has stayed four federal executions set to occur next month, effectively blocking the recent Justice Department decision to resume federal executions. The order issued a preliminary injunction based on concerns about the government’s lethal injection method. See NBC News, NPR; and CNN.
- The ACLU on behalf of five journalists is suing the government claiming the government violated the journalists' First Amendment rights. The suit challenges the government’s questioning of the journalists at the US-Mexico Border. See the complaint in Guan v. Wolf here. The ACLU announcement is here.
Appellate Practice Tips and Techniques:
Here’s a useful Twitter thread on best advice for legal writers. It includes a post from Michelle Olsen about Justice Kennedy: “Justice Kennedy would tell his law clerks: ‘You can't write anything good because you've never read anything good.’” The post includes a link to a Harvard Law Review tribute to Justice Kennedy.
Tuesday, November 19, 2019
I have mentioned in past blogs the importance of the "narrative paradigm" in communications theory. In a nutshell, this theory argues that there is more to persuasion than the logic of your argument. Instead, the "truthiness" of an argument can be compelling, regardless of its objective merits, when it matches the life-experiences and biases of the reader or listener.
In legal writing, we often use allusions, or even meme-like story indexes, in order to quickly hijack the meaning behind a certain story or narrative to fit our needs. This often takes the form of biblical parables in an attempt to quickly convey the "truthiness" of a statement. The parable of the two builders, one who builds on sand and another who builds on rock, for instance, is cited in several cases. The gist of the parable being that if you do not have a good foundation, you cannot build a lasting structure or legal argument.
Citing to the parable, courts often make this comparison. Thus, "a motion built on speculation and conjecture will rarely withstand the winds of scrutiny." Barnette v. Grizzly Processing, LLC, 2012 WL 1067076, *1 (E.D. Ky. Mar. 28, 2012) (unpublished). Or "using the common law as the basis for reasoning, is like building a house upon the sands instead of upon the rock." Ex parte Estep, 129 F.Supp. 557, 558 (N.D. Tex. 1955). Or, even more simply, "[t]he argument is as insubstantial as a house built upon the sand." Russel v. Gonyer, 264 F.2d 761, 762 (1st Cir. 1959).
We all think we get the gist of this parable - that you must have a firm foundation in your home, life, or argument, or it will all fall apart when tested. But most of us don't really understand what it originally meant.
Ray Vander Laan, a theologian with extensive time and training in the middle east, has pointed out that this understanding of the parable is most likely incomplete. In the part of the world that this story was first circulated, the people lived in a rocky desert, where the rocks occasionally give way to even, sand-covered wadis. The floor of a wadi would be the easiest place to build. It would also be the most foolish, because wadis flood in a very predictable and eye-catching fashion:
This cultural knowledge changes the meaning of the well-known parable. It isn't just foolish to build on sand because sand shifts - it is insane to build on sand, because the house will inevitably flood and be destroyed.
This illustration is important for more than just the biblically minded. It shows that the power of a story depends on its understanding, and that this understanding can shift and change over time and cultures. That means that when we reference allusions, or reference stories, we need to make sure that our readers will have the same understanding as ourselves.
Now, as long as our intended meaning meets the understanding of our audience, it does not really matter that the original meaning was something different. Thus, the quotations above still work, because the general understanding of the parable is that a shifting foundation is bad. It is only if we were communicating with the original audience that meaning would be lost.
But this story serves as a reminder that our storytelling is only effective when we know that our audience is going to understand it. I have commented before about how obscure literary references might be admirable, but ineffective if the reader has no reference to the work. Understanding the audience, and their reception of a particularly story index or allusion is necessary to properly telling the story. To paraphrase a well-known marketing book, "To be successful... today, you must touch base with reality. And the only reality that counts is what's already in the [audience's] mind." Al Ries & Jack Trout, Positioning: The Battle for Your Mind 5 (rev'd ed. 1986).
This is not relevant just to the use of existing narratives, but to the stories you put together in your briefing. Remember that you may know the entire case and every detail, but that the court only knows what your present to them in the record. In order to make sure they hear the story you know, you must be sure to preserve all of the pieces of that story (by ensuring that all of your evidence makes it into the record at the trial level) and that you then present, on appeal, a complete narrative that contains each event or fact that makes your client's story persuasive. This includes facts that may not seem even legally relevant, but that are relevant to your audience.
In short, be sure you know what is in your audience's mind before you rely on narrative references to persuade them. Otherwise, you will be building an argument on shifting sand. And everyone knows that's a bad idea.
(Image source: Pieter Bruegel the Elder, The (Greater) Tower of Babel (Vienna), 1563)
Sunday, November 17, 2019
It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.
But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?
Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.
First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.
Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.
Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.
Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.
Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.
Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.
Friday, November 8, 2019
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting
US Supreme Court Opinions and News:
- Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
- The court has released the January calendar, which begins on January 13, 2020.
- A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).
Federal Appellate Court Opinions and News:
- The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
- An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.
The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial. Law360 article here.
Wednesday, November 6, 2019
Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way. When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.” As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.” They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.
Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill. For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly. Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly. Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively. As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels. Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level. If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games.
Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing. Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop. A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough. Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion. They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold. They are new to legal discourse; they do not know how bold or creative they can be. They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation. They have not yet reached mastery.
Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing. Novices even worry that their “formulaic” writing may be a problem. Legal writers are taught to use formulas, such as IRAC and CREAC, to ensure that they provide the information necessary for a solid legal argument and analysis. These formulas are used because they track a logical way to present information needed for legal arguments. Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case. As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments. They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.
A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information. Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy. This may involve deliberately altering the formulas employed. For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule. On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue. Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused. This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue. It also risks that the court might have wanted a fuller exposition of the law before the argument. As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.
Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing. Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling. Novice writers tend to underestimate the value and necessity of revising and editing. The best writers know that rarely if ever is the first draft the best draft. Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court.
So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive. Expect to revise and edit their writing to show them exactly how to do this effectively. Model the behavior you want to see in these novices. And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.
 See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.
 Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.
 Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).
 IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion. CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.
 See Beazley, supra note 5.
Tuesday, November 5, 2019
The last few years I have been unable to attend one of our state-wide appellate conferences because I have been working on appeals. It is a nice problem to have, but it means I am often a little late to the trough of knowledge and have to catch up with my peers through online resources.
One of the presentations I recently watched was by two Supreme Court practitioners on "The Art and Science of Seeking Certiorari." In that presentation, Daniel Geyser and Carl Cecere discuss what the high court is looking for when it reviews petitions.
We all know that one of the best indicators of a successful petition for writ of certiorari is the presence of a split in the circuits. Geyser and Cecere help by pointing out that not all conflicts are created equal, and that some characteristics are more important to the Court than others.
Specifically, they argue that the best conflicts are:
- Fresh and timely, not stale;
- Deep in nature, not shallow;
- Squarely in conflict, not attenuated;
- Balanced in the courts involved on each side of the split, not lopsided;
- Real in the conflict, and not illusory; and,
- Expressly in conflict, and not just implied.
This does not mean that your conflict will not catch the Court's eye if it does not meet all of these characteristics. But it does mean that when you present a conflict, you should address the issues above when they are present so you can more clearly define the importance of the conflict for your court of discretionary review.
Geyser and Cecere give several examples of how advocates make the strength of their conflicts apparent. Some put this information in the issue presented, some in their headers so that the table of contents "speaks" to the issue, and some in their summary of the argument.
The main lesson learned is that you should highlight the importance of your conflict early and often, and not just drop a footnote to a string of cases that disagree with each other. Wake up the Court with the importance of your conflict early on, and they are more likely to pay attention to the substance of your argument later.
(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)
Saturday, November 2, 2019
On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.
By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense. The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime. Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law. A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime. Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.
Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases. The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses. Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.
This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes. It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.
Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.
Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component. This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act. This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.
 See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.
 See id.
 See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.
 See id.
 See id.
 See id.
 See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).
 See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.
 See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.
 Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.
Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research. Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools. Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar. As new lawyers, especially if they start in small or solo practices, they will need access to free tools.
Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more. Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance. See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).
There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery. See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH: Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com. For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019).
In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org. According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.” Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe. The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online.
Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel. See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/. A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned.
For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as: “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.” Next-Gen. Lgl. Res. Platforms, ACB. In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:
(1) “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.” Judicata has free and subscription-based services.
(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”
(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”
I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms. I hope these sources are helpful to you as well. Happy research, everyone!
Tuesday, October 29, 2019
No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.
When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts. Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before. In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.
Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.
It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases. The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.
One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.
This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.
 See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Monday, October 28, 2019
Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.
1. Have an outstanding introduction
When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.
2. Anticipate questions that the court will ask – and prepare effective responses
When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.
3. Prepare, Prepare, Prepare
In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.
4. Concede weaknesses in your argument and acknowledge unfavorable facts
In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.
5. Be respectful to the court and your adversary
This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.
6. Consider the impact of a ruling in your favor on future cases
Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.
7. Respond to the judges’ questions directly
Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.
8. Speak slowly and be aware of your non-verbal actions
It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.
9. Be aware of the time – and practice under timed conditions
During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.
10. Prepare an excellent closing
Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.
Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.
Sunday, October 20, 2019
On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services. The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.
By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion. In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health. Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.
In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services. Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion. In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases. And when complications did occur, they rarely required hospital admission. Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.
In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.
Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.
This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.
 No. 18-1323 (2019).
 410 U.S. 113 (1973).
 505 U.S. 833 (1993).
 579 U.S , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).
 Id. at 2311.
 Id. (internal citation omitted).
 See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.
Saturday, October 19, 2019
This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship. In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights.
Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case? The case could impact the scope of free access researchers and appellate practitioners have to online materials. In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.
In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina. Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years. According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge. The researcher hired Petitioner, Frederick Allen, to document the shipwreck. Id. Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office. Id. at 342, 344.
At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication. The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future. Id. at 344-45. Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record. See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.
Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional. The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity. The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA. Allen, 895 F.3d at 342-43, 350-53. The Supreme Court granted cert, and will hear the case on November 5. https://www.scotusblog.com/case-files/cases/allen-v-cooper/.
Over twenty amici have filed briefs. Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA. For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA. Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597. These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.
On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA. The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries. The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance. ALA ACB, 2019 WL 4858292. Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights. Public Universities ACB, 2019 WL 4748384.
Whatever the outcome of these arguments, our appellate community should keep an eye on this case. Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.
Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Tuesday, October 15, 2019
Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.
Model Rule 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.
Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.
Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:
were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.
The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.
The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.
Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]
Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.
Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.
In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.
In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.
The court admonished:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:
While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.
Finally, appellate counsel must be mindful of Model Rule 8.2(a):
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .
Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).
Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.
The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:
Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
Id. at 148-49.
Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.
We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.
Saturday, October 12, 2019
United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons
On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.
Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
By way of background, Title VII provides in relevant part as follows:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.
II. Discrimination on the Basis of Sexual Orientation
On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.
On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).
III. Discrimination Against Transgendered Persons
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:
Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.
Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”
This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”
Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”
The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.
The Court will likely issue a decision in June 2020.
 42 U.S.C § 2000e-2.
 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).
 See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.
 Id. at p. 27:22-25.
 Id. at p. 25:17-18.
 Id. at p. 50:24-51:1 (emphasis added).
 Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.
Sunday, October 6, 2019
Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.” Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.” In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”
What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?
1. Justice Scalia Wrote Clearly and Concisely
Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.
2. Justice Scalia Wrote for the Audience
Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:
I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."
For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.
Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters
3. Justice Scalia Understood the Importance of Rewriting and Revising
Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:
I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."
Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:
What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."
Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.
4. Justice Scalia Understood that Great Writing Reflects Great Thinking
Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind." An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.
5. Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience
Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.
As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.
Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.” Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”
 David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer
 Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).
 Id. (emphasis in original).
 Id. (emphasis in original).
 Id. (emphasis added).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).
 Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.
Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).