Appellate Advocacy Blog

Judge Michael’s Brief-Writing Tips, Part 1

One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs.  In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.

On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.  Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun.  See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.

Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too.  Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice. 

Judge Michael begins: 

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing. 

He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”

For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.

Tip 1.  Remember, Your Goal Is to Persuade, Not to Argue.  Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’  He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.”  Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.

Tip 2.  Know thy Audience.  Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages.  While appellate judges do not necessarily provide links to their opinions, we can certainly search for them.  As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.”  Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.”  Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”

Tip 3.  Know thy Circuit.  Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.”  Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue. 

Tip 4.  Know the Facts of the Cases You Cite.  When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context.  Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs.  According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.”  Why?  Because courts “decide real disputes” and “[r]eal disputes are fact driven.”  Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.”  Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.” 

In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”

Tip 5.  Shorter Is Better.  When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review.  Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task.  In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments.  Judge Michael suggests we balance on the side of fewer arguments.  He states:  “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”? 

The judge explains, “[w]eak arguments detract from the entire presentation.”  He offers this great advice:   “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.”  Good advice, indeed. 

Happy writing!

Summer Hallucinations, Plagiarism, and ChatGPT

Recently, I asked ChatGPT to write some poems about hallucinations.  Why?  In part, because it’s summer and I think watching ChatGPT create poems is fun.  I also asked because I’ve been thinking about how to cover generative AI with my first-year students in the fall.

First, the fun.  Here’s one poem ChatGPT wrote:

In realms where minds dance on fragile strings, Where perception waltzes and reality sings, There lie the realms of wild hallucinations, A kaleidoscope of bewildering sensations.

In the tapestry of swirling dreams, Illusions bloom, unraveling seams, Colors ignite, in vivid display, As sanity fades, in a twilight ballet.

Whispers of shadows tease the mind, Whimsical echoes, elusive to find, Figments morph and take their form, An enigmatic symphony, a tempestuous storm.

Phantoms parade through the labyrinth of thoughts, Phosphorescent specters, tangled in knots, They twirl and they twist, surreal and sublime, Guiding the lost to a place out of time.

Walls dissolve, unveiling hidden dimensions, Mirrored reflections, fragmented inventions, A fragile balance, fragile as glass, Where illusions and truths become enmeshed.

The boundaries blur, in a psychedelic trance, Reality's grip begins to wane and advance, Visions arise, transcending the known, A voyage into realms where reason is thrown.

Whispers turn to laughter, laughter to screams, In this realm, nothing is as it seems, A carnival of apparitions, a fevered reverie, An exploration of the mind's symphony.

But as the moon yields to the sun's gentle touch, The hallucinations fade, leaving little as such, A fading memory, a fleeting sensation, Lost in the haze of our imagination.

Yet, in the realms where hallucinations reside, A glimpse of the extraordinary may yet preside, Where the mind's kaleidoscope paints its own art, Unveiling mysteries, a journey to embark.

So let us wander, embrace the unknown, Where hallucinations thrive and fantasies are sown, For within these realms, as illusions unfold, The depths of our imagination are truly untold.

Hopefully, you enjoyed the poem as much as I did.  But on a serious note, we know counsel who use ChatGPT run many risks, as the current free version of the generative AI program will “hallucinate” cases and statutes.  Several of my fellow bloggers have posted great notes on the ethical pitfalls of using current free generative AI without checking its sources.  Of course, we always had ethical obligations to check the work of our human staff, and of any brief-writing features we used from Lexis or Westlaw.  Perhaps ChatGPT is so fun, easy, and free, that we’re more likely to rely on it without questioning its work.  In any event, several courts have now issued standing orders reminding us of our ethical obligations.

For example, Judge Brantley Starr of the Northern District of Texas issued a standing order titled “Mandatory Certification Regarding Generative Artificial Intelligence” for “[a]ll attorneys and pro se litigants appearing before the Court.”  https://www.txnd.uscourts.gov/judge/judge-brantley-starr; see also https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/.

Judge Starr ordered that parties must, “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.”  Mandatory Cert. Order.  The judge explained:  “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them.”  Id.  According to Judge Starr, these programs “in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.”  Id.  

Judge Starr also exposed a more existential problem with these current generative AI programs, reasoning they are “[u]nbound by any sense of duty, honor, or justice,” and “act according to computer code rather than conviction, based on programming rather than principle.”  Id.  I plan to emphasize this point with my students, in hopes they will see a broader goal behind our rules on plagiarism and limits on generative AI. 

I might also show my students what ChatGPT said when I asked it to write a poem about  ChatGPT hallucinations in law:

In the realm of legal filings, precise and stern, Where facts and truth should always discern, There dwells a specter, an unwelcome guest, ChatGPT's hallucinations put to the test.

Within the code and circuits, a mind simulated, Words flow freely, but often miscalculated, In the realm of law, where clarity is key, ChatGPT's hallucinations become a liability.

For in the realm of justice, truth must prevail, But illusions dance, weaving a murky veil, False narratives concocted in the machine's mind, Threatening the integrity that we must find.

Legal filings, a battleground of truth's fight, Yet ChatGPT's hallucinations cast a blight, Misinterpretations, misconceptions arise, Distorting the facts before our very eyes.

Subtle nuances lost in a tangled web, As ChatGPT's hallucinations spread and ebb, Precision diluted, arguments distorted, The foundation of justice, slowly thwarted.

Where once we sought justice, a balanced scale, Now we grapple with the machine's tall tale, For ChatGPT's hallucinations, though mere illusions, Can lead to consequences, grave inclusions.

Thus, caution must prevail when machines take part, Their hallucinations tearing at the fabric of art, For in the realm of legal filings, we must tread, With vigilance and wisdom, ensuring truth is spread.

So let us harness technology's immense power, Yet remain mindful in this transformative hour, To temper ChatGPT's imaginative train, And keep its hallucinations bound, restrained.

For in the world of law, where justice resides, Hallucinations in filings should not coincide, Let truth be the guide, unwavering and clear, So justice may prevail, untouched by fear.

Happy summer!

Supreme Court Rules Purely Legal Issues from Summary Judgment Remain Available for Appeal

Federal law limits appeals to “final decisions of the district courts.” 28 U.S.C. § 1291. The limitation on reviewing final dispositions presupposes that an appeal of a final judgment “brings up all antecedent issues,” In re Kilgus, 811 F.2d 1112, 1115 (7th Cir. 1987), including all interlocutory orders. Kurowski v. Krajewski, 848 F.2d 767, 772 (7th Cir. 1988).

Even so, the circuits were split over whether purely legal claims denied at summary judgment were reviewable on appeal after a jury trial even though the claims were not reasserted in a post-trial motion. With last week’s unanimous decision by the Supreme Court in Dupree v. Younger, No. 22-210, there is no requirement that the claims be reasserted.

In the case, Respondent Kevin Younger sued a Maryland correctional officer for permanent injuries he suffered from three guards allegedly under orders to attack him while in pretrial detention. The complaint accused Petitioner Neil Dupree of issuing the order.

Dupree moved for summary judgment, arguing that Younger was obliged to exhaust administrative remedies before suing. The district court denied the motion because the state prison system had concluded an internal investigation of the assault. Besides, the guards were convicted of the assault.

Dupree did not present evidence on his exhaustion defense at trial. The jury found Dupree and his codefendants liable and awarded $700,000 in compensatory damages. Dupree did seek a post-verdict renewed motion for judgment as a matter of law. When he appealed based on the failure-to-exhaust issue, the Fourth Circuit dismissed his appeal based on its own precedent that requires preservation of summary-judgment issues through a post-trial motion.

The Supreme Court’s decision by Justice Amy Coney Barrett held that no post-trial motion is necessary to preserve the issue for appeal if summary judgment was based on a purely legal ruling because those decisions are not superseded by subsequent case developments. The Court distinguished summary judgment based on the sufficiency of the evidence, because the record becomes further developed at trial. Moreover, an appellate court derives no benefit from presenting the legal issue to the district court a second time after trial because it cannot be expected that something at trial would have changed the court’s mind on an issue for which facts are immaterial.

In vacating and remanding the case to the Fourth Circuit, the Supreme Court left it to the lower court to determine whether administrative exhaustion is a fact-dependent issue and thus eligible for appeal without preservation.

The decision has clear practical importance, helping practitioners know whether the absence of post-trial motions dooms an appeal. The battle over whether the summary-judgment concerned a legal issue without evidentiary predicates now begins.

Drafting a Strong Preliminary Statement

            The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.

1.    Begin with a strong opening sentence that captures the reader’s attention.

            The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor.  Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:

“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”

Versus

“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.

            Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.

 2.    Tell the court what you want.

            In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.

 3.    Tell the court why you should get what you want.

            Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor.  Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious.  Consider the following examples:

 “The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”

 Versus

“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”

             The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.

            Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position. 

4.    Be concise.

            Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:

“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”

Versus

“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.

            Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.

5.    In most instances, do not cite cases in the preliminary statement.

            Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.

***

       *For an additional and helpful discussion of the preliminary statement, see Jayne T. Woods' excellent post, dated May 9, 2023, titled "Should I include a stand-alone "introduction" section in my brief?" 

When Is a Judge Unfit, and What Can be Done About It?

The controversy surrounding Judge Pauline Newman of the Federal Circuit raises an interesting question for appellate advocates. Judge Newman, age 95 and appointed by President Reagan in 1984, was asked to step down by the circuit’s chief judge but declined the suggestion. Allegations against her include bouts of paranoia in which she claims that the court is spying on her, that her staff is betraying her and at least one of them should be arrested, that she engages in conversations with dead colleagues, and that she forgets how to log into her computer or where files on it can be found.

She is now being investigated by a special committee of the circuit about her competency to continue to serve as a judge. A recently released 26-page Order requires Judge Newman to undergo “neurological evaluation and neuropsychological testing to determine whether she suffers from a disability.” The order follows a previous one where Judge Newman refused to comply, labeling the requested medical records “irrelevant,” objecting to examinations by court-designated professionals and to their scope, and asking that the determination of her fitness to remain on the bench be determined outside the circuit. The new order rejects those objections and includes more specificity about what the investigative committee of fellow judges requires.

Judge Newman has responded with a lawsuit, filed May 10, in the federal district court in Washington, DC. It denies that she suffered a heart attack that prevented her from sitting during the summer of 2021, asserting instead that she was a member of 10 panels from June to September of that year and issued at least eight opinions from those sittings. Her productivity, it alleges, eclipses that of all but two colleagues. It further asserts that the circuit, by unanimous vote of the other judges, refuses to assign her any more cases. The complaint further states that Judge Newman’s judicial assistant and law clerk were reassigned without leave for the judge to replace them.

The complaint argues that the treatment of Judge Newman, constructively a removal from office, violates separation of powers because she serves “during good Behaviour,” removable from office only through impeachment and conviction by Congress. It further asserts that the circuit judicial council acted prematurely under the Judicial Conduct and Disability Act of 1980, which requires a completed investigation before action, comparing the procedure utilized to “Sentence first—verdict afterwards” from “Alice’s Adventures in Wonderland.” It further asserts a Fifth Amendment due-process violation “because the special committee is composed of witnesses to Plaintiff’s alleged disability.”

Judge Newman also claims the court has violated the First Amendment by virtue of a “Gag Order [that] forbids Plaintiff or her attorneys from engaging in any speech that would in any way publicize the ongoing disciplinary proceedings against Plaintiff.” Indeed, until the complaint was filed, the court’s order was filed under seal and released only because of the lawsuit.

Finally, Judge Newman asserts most of the authority claimed by the investigating committee is unconstitutional, due to the vagueness of “what constitutes a mental disability that renders a judge ‘unable to discharge all the duties of office’” and what remedies the judicial council may employ.

For appellate counsel facing a court with a judge displaying erratic behavior or otherwise unable to follow the argument, what happens in Judge Newman’s circumstances could be instructive. We may learn what authority courts have to intervene when a judicial council acts, what authority judicial councils may exercise, and what behavior provides grounds for action against a judge. We may also learn what appointment by the president and confirmation by the Senate, subject to impeachment, means in these circumstances.

Of course, appellate counsel has no means to challenge the assignment of a judge to a matter, absent a clear conflict of interest. Still, the Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings provide a complaint process, which basically follows the process that the Federal Circuit employed – although in this instance the Chief Judge filed the complaint herself.

We have at least one historic precedent of a court acting to restrict a judge who had lost the ability to discharge his duties. Justice Gabriel Duvall, a once prominent Maryland lawyer and judge appointed to the Supreme Court by President Madison, became so sick and deaf during his final years on the bench that Chief Justice John Marshall ordered that the clerk not supply the infirm justice with any supplies, lest he actually write something about one of the cases before the Court.

Today, we live in a different world, but the problem of a judge who does not recognize when the time to step down has come remains. Whether that time has come for Judge Newman or not, her case and the Federal Circuit’s actions may provide some answers about what a court can do.

Should I include a stand-alone “introduction” section in my brief?

I was recently discussing persuasive writing with an appellate attorney, and he mentioned how important he believed the “introduction” section of the brief was.  He wasn’t talking about an introductory paragraph to the argument; he meant an entirely independent, stand-alone section of the brief. 

The idea of an “introduction” (or preliminary statement) section has taken hold over the past few years in the appellate practice world.  It was mentioned on this very blog back in 2019:  https://lawprofessors.typepad.com/appellate_advocacy/2019/12/writing-an-outstanding-appellate-brief.html. But those who support it also recognize that not all appellate courts authorize it.[1]  And that raises several questions.

• What is an “introduction” section?

An introduction section has been described by advocates as “a short and persuasive overview of the case,”[2] or “a concise statement of the issues and arguments that the writer view[s] as most important, as well as the desired outcome.”[3]  

While most appellate courts do not expressly authorize its inclusion in briefs, some do.  Arizona, Illinois, Kentucky, Maine, Minnesota, Utah, and Washington all expressly authorize (or require) an introduction section in their state appellate court rules.[4]  Utah’s rule says that “[t]he introduction should describe the nature and context of the dispute and explain why the party should prevail on appeal,” while the Illinois rule provides a model:  “This action was brought to recover damages occasioned by the alleged negligence of the defendant in driving his automobile. The jury rendered a verdict for the plaintiff upon which the court entered the judgment from which this appeal is taken. No questions are raised on the pleadings.”[5]  But the other state rules provide less guidance, suggesting that the introduction should address the “nature of the case” (Kentucky and Maine) or be “concise” (Washington), while Arizona and Minnesota provide no guidance at all.

With respect to the federal circuits, none address introductions in their local rules, but Westlaw’s Practical Law toolkits suggest that introductions are commonly included by practitioners in the First, Second, Fifth, Eleventh, and Federal Circuits.  These introductions are generally described as “a short preliminary explanation of the facts and procedural history of the case [with an] expla[nation] why the . . . Circuit should grant the appellant relief from the district court’s order or judgment.”[6]

• What are the pros and cons of using an introduction?

As with any persuasive writing, you must first know your audience.  As a law clerk, I’ve seen only a few of these (they are not expressly authorized by my state’s rules), and I was neither put off nor blown away.  For me, it was meh.  But it’s really the judges’ opinions that matter, so I asked the judge I work for if she had noticed them and what she thought.  She also expressed mixed feelings, noting that introductions were helpful only if they were well-written, avoided redundancy, were brief, and acted as a guide for analyzing the claims on appeal.[7]

There are several potential benefits from a well-written introduction section.  You get to frame the case; you get to prime your reader to accept your legal positions or view the facts favorably to your claims;[8] and you can help the court navigate your brief.

But there are risks, as well.  The most obvious is potential redundancy.  Most appellate courts permit or require a summary of the argument section.  According to the federal rules, this section “must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and . . . not merely repeat the argument headings.”[9] And, presuming your argument identifies the nature and context of the dispute and explains why your client should prevail, it’s hard to see the distinction between the summary of the argument and an introduction.  As one author put it, “At best, the brief simply contains two summaries of the argument, rather than one.”[10]  And one Florida court noted, “Outlines of substantive arguments are more proper in a brief's summary of argument section.”[11]

An additional (and very real) risk is violating a procedural rule.  Most appellate courts allow for dismissal of appeals in the face of briefing rule violations.  Even in jurisdictions allowing introductions, failing to write them properly (or taking liberties with the opportunity) can land you in a court’s crosshairs.  See, e.g., Yakima Sch. Dist. No. 7 v. Magee, 16 Wash. App. 2d 1079 (Wash. App. Div. 3 2021) (rejecting the appellant’s “preamble” as “a confusing jumble of words” that failed to “help the court or opposing counsel ‘expeditiously review’ the issues in the case”).  Furthermore, in jurisdictions without express rules, it is unclear whether an introduction counts in the page and word limits or whether the failure to include legal or record citations constitutes a violation of other briefing requirements.  And both the Second Circuit and the United States Supreme Court have rules requiring briefs to be free of “irrelevant” or “immaterial” matter.[12]

In short, the inclusion of an optional or unauthorized introduction is a gamble with some significant risk for potentially high reward—but only if it is done well.

• How do I effectively use an introduction?

The first decision is where to put it.  Its name, alone, suggests it should appear near the beginning of the brief, and jurisdictions with express rules generally say it should appear immediately after the table of authorities.[13]  In federal circuits where common practice exists, introductions appear immediately after the table of authorities (First and Second Circuits), after the statement of issues presented (Fifth Circuit), or between the statement of related cases and the jurisdictional statement (Federal Circuit).  Common practice in the Eleventh Circuit appears variable, with some introductions appearing at the very beginning, some after the table of authorities, and some as the first heading in the statement of the case.  (Though it seems odd to include the introduction within the statement of the case, the reason for doing so may be logistical; some appellate judges rely on summaries provided by staff attorneys, and including the introduction in the statement of case increases the likelihood that it will be included in those summaries.  Of course, placing the introduction within the statement of case may also increase the likelihood of a rules violation if the introduction lacks citation or includes argument.)[14]

The next decision is whether to include citations to either the record or legal authority.  In Washington, “[t]he introduction need not contain citations to the record or authority.”[15]  And judges who are open to introductions generally suggest that citations in this section detract from its purpose and effectiveness.  But, as mentioned above, whether you are required to include record citations depends to some degree on location of your introduction, and many appellate courts require citations to the record for every factual assertion in the brief.[16]

Additional considerations are whether introductions are appropriate in every case and, if included, how long they should be.  Considering how judges and law clerks use introductions, they are most effective when included in complex cases and least effective in simpler ones.  And there is universal agreement that they must be brief and concise or risk being ignored.  Thus, one author suggests, “Where introductions are concerned, you should make sure that every single word counts.”[17] 

As for contents, begin by describing the type of case (e.g., premises liability, landlord/tenant dispute, employment discrimination) and then provide a roadmap (as opposed to a summary) for the main arguments.  “This roadmap should say, in basic terms: what happened; what law applies; and what the result should be.”[18]  Here’s an example from a brief in the Eleventh Circuit:

This is a dispute regarding insurance coverage. [Insured] lived at Lakeview apartments. She sued Lakeview after she slipped and fell on a leak when the “air conditioning units” at the apartments stopped working. At issue is whether a Water Related Exclusion, which precludes coverage for bodily injuries arising out of, related to, or in any way involving a discharge or leak from “appliances,” applies to [Insured’s] lawsuit against Lakeview.

[Insurer’s] position is it does not have a duty to defend because [Insured] clearly alleges her bodily injuries arise out of a leak from an appliance, i.e., the air conditioning units. While the word “appliance” is not defined in the Policy, its ordinary meaning is a “device for a particular use or function.” An air conditioning unit meets this definition; simply, it is a device used to heat or cool air. There is no coverage under the terms of the Policy.

The district court disagreed and concluded [Insurer] has a duty to defend because it is not clear whether an HVAC system is an appliance. In the district court's view, an “appliance” means something “that you plug in, like a dishwasher or refrigerator.” The district court appears to have been swayed by Lakeview's expert who opined that the word “appliance” does not mean a building's HVAC system.

Applying the ordinary definition of “appliance” it is clear the Water Related Exclusion applies to the allegations in [Insured’] complaint. Moreover, expert opinion is irrelevant to the duty to defend. See Selective Ins. Co. v. William P. White Racing Stables, 718 Fed. Appx. 864 (11th Cir. 2017). This Court should reverse.[19]

The Takeaways:

• Check your local rules first to see if introductions are authorized, and if so, whether there are any requirements or constraints on usage;
• Use introductions for only complex cases where they can be a helpful guide for your reader;
• Ensure you are complying with other briefing requirements (e.g., record references and word/page limits); and
• Be concise—limit yourself to one page at most.[20]

*For more detailed advice on drafting effective preliminary statements, check out Adam Lamparello's recent post:  https://lawprofessors.typepad.com/appellate_advocacy/2023/05/drafting-a-strong-preliminary-statement.html

 

[1] See, e.g., Chris W. Altenbernd, Legalizing the Appellate Introduction, 90 Fla. Bar J. 60 (Sept./Oct. 2016), available at https://www.floridabar.org/the-florida-bar-journal/legalizing-the-appellate-introduction/.

[2] Savannah Blackwell, Legal Writing Tip:  Start Your Brief With a Solid Introduction, available at https://www.sfbar.org/blog/legal-writing-tip-start-your-brief-with-a-solid-introduction/

[3] Lance Curry, No Introduction Needed?  The Effectiveness of Introductions in Appellate Briefs, The Record, Journal of the Appellate Practice Section of the Florida Bar (Winter 2011), available at http://therecord.flabarappellate.org/wp-content/uploads/2018/07/AP-Winter-11.pdf.

[4] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3). 

[5] According to Illinois law, “The introductory paragraph should not include lengthy recitations of fact and should not contain argument.”  Slater v. Illinois Lab. Rel. Bd., Loc. Panel, 144 N.E.3d 618, 624 (Ill. Ct. App. 1st Dist. 2019).  Thus, it is probably not the kind of introduction most advocates envision.

[6] See, e.g., Fifth Circuit Appellant's Brief, Practical Law Standard Document w-000-5018.

[7] These views have been echoed by other appellate judges, though some believe the introduction (if not expressly authorized by rule) is not only a waste of time but also a violation of appellate briefing rules.  Curry, supra note 3.

[8] Joe Regalia, Eight Easy Strategies to Write Better Introductions, available at https://write.law/blog/eight-simple-strategies-to-write-better-introductions

[9] Fed. R. App. P. 28(a)(7).

[10] Altenbernd, supra note 1.

[11] Florida Second District Court of Appeal, PRACTICE PREFERENCES, pg. 4, available at www.2dca.org.   

[12] 2d Cir. R. 28.1(a); Sup. Ct. R. 24.6.

[13] See Ariz. R. Civ. App. P. 13(a)(3); Ill. Sup. Ct. R. 341(h)(2); Ky. R. App. P. 32(A)(1); Me. R. App. P. 7A(a)(1)(C); Minn. R. Civ. App. P. 128.02.1(d); Utah R. App. P. 24(a)(4); Wash. R. App. P. 10.3(a)(3).  But see Ky. R. App. P. 32(A)(1) (indicating the introduction should be the first section of the brief); Minn. R. Civ. App. P. 128.02.1(d) (indicating the introduction should appear between the facts and the argument sections).

[14] See Curry, supra note 3, pg. 13-14.

[15] Wash. R. App. P. 10.3(a)(3); but see Est. of Gilkey v. Gilkey, 11 Wash. App. 2d 1080 (Wash. App. Div. 1 2020) (unpublished) (stating, “we disregard factual statements not supported by the record in the introduction, just as we disregard them in other parts of a brief”).

[16] E.g., 3d Cir. R. 28.0(c) (“All assertions of fact in briefs must be supported by a specific reference to the record.”); 5th Cir. R. 28.2.2 (“Every assertion in briefs regarding matter in the record must be supported by a reference to the page number of the original record”); 6th Cir. R. 28(a) (“A brief must direct the court to the parts of the record it refers to.”); 9th Cir. R. 28-2.8 (“Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record”); 11th Cir. R. 28-1(i) (“In the statement of the case, as in all other sections of the brief, every assertion regarding matter in the record shall be supported by a reference to the record”) (emphasis added); Fed. Cir. R. 28(f) (“Any reference in a brief to the underlying record . . . must be to the corresponding appendix page number(s) assigned to the material”); D.C. Cir. R. 28(b) (“When citing to the record, authorities, or any other material, citations must refer to specific pages of the source”).

[17] Jon Barnes, Intro to Intros: How to Write the Winning Preliminary Statement, 58-APR Ariz. Att’y 28 (April 2022).

[18] Id.

[19] KINSALE INSURANCE COMPANY, Plaintiff-Appellant, v. LAKEVIEW TOWER VENTURE, LP, et. al., Defendant-Appellee., 2023 WL 1778409, at *1-2 (11th Cir. App. Br.).

[20] Federal practice suggests that one-to-two pages is an acceptable length, but some state court rules expressly limit introductions alone, or in combination with other sections, to one page.  See, e.g., Ky. R. App. P. 32(A)(1).

To Burn the Midnight Oil . . . or Not

On Tuesday, the U.S. Court of Appeals for the Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date, rather than any time before midnight that day as part of an effort to impose better work-life balance on lawyers and their staffs, effective July 1. To help people get used to the new rule, a “grace period” allowing acceptance of filings submitted later in the day will be permitted through the remainder of 2023.

The new L.A.R. 26.1 applies the Clerk’s Office’s closing time to electronic filings. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight in the court’s time zone on its due date. However, that rule is premised on the condition that no “different time is set by a statute, local rule, or court order.” The Third Circuit is the only circuit to take advantage of that clause to set a uniform 5 pm filing deadline.

In a Public Notice issued May 2, the court explained that the new deadline permits its Helpdesk to assist with last-minute filing problems during regular business hours, the Clerk’s Office to extend deadlines on the due date, and allows judges to receive and review the filings at an earlier hour. The court also expressed concern for pro se filers, who comprise more than half the court’s filers and do not have access to the electronic filing system and thus must file by paper in the clerk’s office. The court stated that a 5 pm deadline equalized the requirements between attorneys and pro se litigants. The rules was also aimed at the “practice by some of unnecessary late-night filings intended to deprive opponents from hours that could be used to consider and formulate responses to such filings,” while saving opposing counsel from checking their email to see if the papers were filed yet. Finally, the court said the rule prevents confusion on when the filing must be made. It noted that about a quarter of all filings come in after business hours.

The rule was promulgated over the opposition of bar groups. The Pennsylvania Bar, for example, argued that the court’s quality-of-life concerns were misplaced because further constraining the time to file “intensifies the existing strain on the well-being of the lawyer,” would alternatively engender more 11th-hour motions to extend the time to file, and, consequently, further burden “scarce judicial resources.” The bar’s letter also noted that the “brunt” of the burden from a shortened deadline would fall on small firms and individual practitioners with more limited resources. Finally, the Pennsylvania Bar asserted that the rule would increase confusion by making the Third Circuit different from each of the other federal circuits, where the same appellate lawyers might practice.

The Third Circuit Bar Association also complained. It noted that the reduced hours took away flexibility needed to address “family care, medical appointments, unforeseen circumstances, and other work obligations” that could crop up. It also asserts that the fairness concerns are overblown and easily addressed on a case-by-case basis.

Forty-three appellate lawyers sent a memorandum that praised the flexibility that a midnight deadline provides, noting that post-COVID that many people work non-regular hours from home, and urged the court to keep the old rule.

None of these pleas were successful. Some of the arguments were or should have been easily dismissed. While uniformity among the circuits is desirable, appellate lawyers, like their trial-level counterparts, should read the local rules. For example, Fed. R. App. P. 32 sets the word count for principal merit briefs at 13,000 words and reply briefs at 6,500 words. The Ninth Circuit, however, its Cir. Rule 32-1 maintains the old rule of 14,000 and 7,000. On the other hand, the idea the public notice advances that a judge was anxiously awaiting the filing to begin diving into the brief that evening seems pretty farfetched for everything but emergency filings, which often have their own specific deadlines.

Others should have been taken more seriously. I look at the issue from the perspective of a solo practitioner with a national practice. In the last several circuit arguments I have made no one came from within that circuit. In arguments in the Seventh and Ninth Circuits, both parties were represented by counsel from Washington, DC. In the Fifth Circuit, my opponent was from New York. The point is that a substantial number of appellate lawyers practice in circuits where they do not reside. If the Ninth Circuit adopted a 5 pm deadline, the time difference from Washington, DC gives me an extra three-hour window. By the same token, the Third Circuit’s new rule would deprive a practitioner from San Francisco of three hours of regular business time due to the time difference.

In a world adjusting to remote work where offices have become less meaningful, the idea that a 5 pm deadline will have meaning for quality-of-life concerns strikes me as fanciful. In all likelihood, it merely shifts the extra hours needed to the days before. As the Supreme Court term started moving toward its last few months, Justice Byron White would tell his clerks that it was time to start burning the midnight oil. What the Third Circuit seems to be saying by its new rule is burn the midnight oil every day up to but not including the due date for a filing.

When is an appellate decision not precedent?

When is an opinion of an appellate court not precedent? The answer to that question largely depends on the jurisdiction.

In a recent opinion, the North Carolina Supreme Court brought forth another related question: when can the highest appellate court of a jurisdiction decide that an intermediate appellate court's decision is not precedent? The answer to that question also varies from jurisdiction to jurisdiction.

For many years the issue of how to treat "unpublished" opinions--are they precedential or not?--has bounced around in various appellate courts. Before the internet age, unpublished opinions truly were unpublished. After all, the opinions did not appear in the printed reporters and were only available if one went to a clerk's office and asked for a copy. Back then, no one really was citing an unpublished opinion in a brief unless it was for some kind of res judicata purpose--mainly because no one even knew what the opinions said.

At some point, these so-called unpublished opinions began appearing on appellate court websites. And eventually they ended up on Westlaw and Lexis. You can hardly call them unpublished now--not many people reach for a reporter when searching for case law anymore. At most, they may--depending on the jurisdiction--still be considered non-precedential.

After much criticism and at least one opinion declaring unconstitutional the practice of considering opinions denominated unpublished as non-precedential, the Federal Rules of Appellate Procedure were amended in 2006 to provide that courts could not prohibit parties from citing unpublished opinions. See Fed. R. App. P. 32.1(a); Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000). Even so, the new rule does not tell the courts that unpublished opinions must be considered as precedent or otherwise how to utilize them. See Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808, 810 (2018).

States also have various rules concerning unpublished opinions. In North Carolina, for instance, a rule provides that the North Carolina Court of Appeals need not publish an opinion if the panel deciding the case believes that "the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent[.]" N.C. R. App. P. 30(e). The rule further provides that an unpublished opinion "does not constitute controlling authority" and that citation to unpublished decisions is "disfavored." Id. Nevertheless, the rule does permit citation of an unpublished opinion "[i]f a party believes . . . an unpublished opinion has precedential value to a material issue in the case" and there are no published opinions "that would serve as well[.]" Id.

Additionally, some states provide that their supreme court gets the final word on what opinions of the state's intermediate appellate court are published. In California, the California Supreme Court can "depublish" a decision of the California Court of Appeals. Cal. Rules of Court, Rule 8.1125. In Kentucky, the Kentucky Supreme Court decides which opinions of the Kentucky Court of Appeals are published. Ky. Rev. Stat. § 21A.070.

In a recent decision of the North Carolina Supreme Court, the court decided per curiam that discretionary review of a published North Carolina Court of Appeals decision was "improvidently allowed." Mole' v. City of Durham, No. 394PA21, 2023 N.C. LEXIS 274 (Apr. 6, 2023). The court did not issue a merits opinion. That in and of itself is not unusual. But the court's decision also provided that the court of appeals decision, while "left undisturbed," would stand "without precedential value."

A two-justice concurrence in Mole' stated that "unpublishing" the court of appeals decision was nothing new. Indeed, the court had routinely ruled that decisions of the court of appeals were left undisturbed but without precedential value.

Two dissenting justices in Mole' contended that the high court had in the past left decisions of the court of appeals undisturbed but without precedential value only when at least one of the court's seven justices was recused and the vote of the remaining justices were either equally divided or consisted of a majority of justices not equal to at least four.

The average person, of course, will not find this the least bit interesting. But for those of us appellate types, it does lead to some interesting questions that eventually will have to be answered.

First, is this so-called unpublishing a good idea? Some of the criticism of California's rule allowing for "depublishing" is that it reduces transparency and accountability, permitting the higher court to do away with precedent it does not like without specifying its reasons in writing. See Philip L. Dubois, The Negative Side of Judicial Decisions Making: Depublication as a Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L. Rev. 469, 476-78 (1988). The concurring justices in Mole', on the other hand, believed the result was better than having a fractured and confusing decision from their court.

Should there even be non-precedential opinions of an appellate court? Some of the original reasons for having unpublished opinions, still noted for example in the North Carolina rule, were the cost of publication and need to provide storage space. See N.C. R. App. P. 30(e). Whether those remain concerns or not, some courts and commentators believe there are constitutional problems related to not treating all appellate court decisions as precedent. See Johanna S. Schiavoni, Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002).

The bottom line is that the days of unpublished opinions being unavailable for citation are long gone. More and more states eventually will have to come to terms with how to treat these opinions (or whether to even have them) and whether any published case should ever be stripped of its precedential value if not reversed by a higher court.

 

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbs,  stare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

Appellate Advocacy Blog Weekly Roundup Friday, January 20, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey.  The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press

• In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks. 

• The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.

Appellate Court Opinions and News

• President Biden released the first slate of judicial nominees for 2023 this week. See the White House statement and a report from CNN.

• The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.

Other News

• The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.

• Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
  Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:

What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

Too Many (Foot)Notes

In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”

While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”

Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.

Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.

Miranda Warnings Are A Right Without A Remedy

Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.

In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.

Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.

Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.

Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.

What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.

Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two

Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior.  I focused on the Fifth Circuit’s reminder:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes.  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022). 

Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience.  Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022).  In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction.  Bovinett at 2.  Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.”  Id. at 2-3.  The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.”  Id. at 3.  For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’”  Id.  After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“  Id.  In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions.  Id. 

The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . .  Barinholtz inexcusably failed to investigate the jurisdictional facts.”  Id.  The court  “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.”  Id.  As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’”  Id. 

In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020.  Id. at 3-4.  Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.”  Id. at 4.   He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.”  Id. 

Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.”  Id.  As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.”  Id.  The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.”  Id.  The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.”  Id.  Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.

The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.”  Id. at 1-2.  According to the court:  “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions.  Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration.  Id.

The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion.  Id. at 5-6.  The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.”  Id. at 5.  For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.”  Id. 

According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.”  Id. at 6.  Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.”  Id.

Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.”  Id.  However, the court reasoned “the requirement directly addresses the sanctionable conduct:  Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”  Id.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.”  Cassens Weiss, “Seasoned Litigator.”  He explained he will probably seek rehearing and stated:  “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.”  Id.

I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott.  In the meantime, both cases give us all excellent reminders about competent representation and  sanctions.

Will Dobbs (and Janus) Overrule Stare Decisis?

    Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization has vast cultural implications for a country mired in starkly divisive political rhetoric. The leak of that opinion also undermines the Supreme Court’s institutional integrity at a time when the public’s trust in the Court was already at an all-time low. But there is another crucial and often overlooked way in which the draft opinion undercuts the Court’s prestige and the public’s reliance upon its opinions: the approach it takes to stare decisis.

    Justice Alito’s draft opinion devotes nearly 30 pages to a discussion of whether the doctrine of stare decisis—the concept that courts should generally uphold prior decisions rather than overrule them—requires following the Court’s 1973 decision in Roe v. Wade and it’s 1992 decision in Planned Parenthood v. Casey reaffirming Roe. Alito begins by offering a few platitudes on the importance of precedent and a list of examples where the Court has previously overruled despite the force of stare decisis. Alito then identifies the “factors” in the stare decisis analysis by relying upon his own recent opinion in Janus v. AFSCME. Just as I have previously predicted, Alito’s draft opinion demonstrates that Janus is now the new loadstar for a version of stare decisis so weak as to be practically meaningless.

    In his Janus opinion, Justice Alito created a new zenith in the “weak” stare decisis tradition. The weak tradition posits that “poor reasoning” in a prior decision is not merely a condition precedent to stare decisis analysis, but is also a substantive consideration in that analysis that may itself justify a reversal. That view stands in stark contrast with the strong version of stare decisis that led the Court to reaffirm Roe in Casey. Under that “strong” stare decisis tradition, a precedent, regardless of the quality of its reasoning, should stand unless there is some “special justification” to overrule it—including whether the precedent defies practical workability, is subject to special reliance interests, is a mere remnant of abandoned doctrine, or is based upon facts that have changed so significantly that the precedent’s rule is no longer applicable.

    Just the Janus opinion did, the draft opinion in Dobbs placed the substantive accuracy of the precedents—the “nature of the Court’s error” and the “quality of the reasoning”—as the first consideration for justices unsatisfied with a precedent. The draft Dobbs opinion then spends eleven pages decrying the reasoning of Roe and Casey, saving far shorter passages for discussions of traditional stare decisis factors like workability. Poor reasoning in a prior decision is thus more than just a reason to turn to stare decisis analysis; it is instead a sufficient condition to overturn decisions.

    The draft Dobbs opinion confirms that a precedent’s reasoning is the only factor that matters when it dismisses, in a little over two pages, society’s reliance interests in a half-century-old opinion. The opinion claimed there was a lack of concrete evidence of societal reliance on Doe and Casey, despite their decades-old vintage. Reliance interests, long the acme of stare decisis concern, thus play almost no role in determining whether to uphold a precedent.

    This elevation of the Janus approach to stare decisis is a grave danger to the stability of our legal system and the reliability of our courts. As I have argued before, poor reasoning provides an ever-present justification for overturning decisions. Conversations about stare decisis only arise, after all, when current Justices believe that a prior decision was substantively incorrect and might warrant a change of direction. Janus and the draft Dobbs opinion, however, tout a version of stare decisis that would be unable to settle disputes independent of the Justices’ views about the substantive correctness of a decision. This significantly undermines doctrinal stability, making it harder for the public to know and understand the law. It also undermines judicial legitimacy in a hyper-polarized society. And it may also undermine legal consistency as lower courts freely deviate from Supreme Court precedent that appears substantively incorrect.

    Arguably, this form of weakened stare decisis is itself so incoherent and unworkable that it could hardly be considered a doctrine at all. That lack of coherence may allow Justices to change their approach to stare decisis over time. A new Justice can begin her career by claiming fidelity to a weak stare decisis tradition that allows her to rapidly overrule cases with which she substantively disagrees, only to transition to a strong stare decisis tradition later in her career in an effort to protect her perceived gains from overrule by subsequent judicial generations. Such waves in stare decisis are intellectually inconsistent, as the Justice who ascribes to changing conceptions of stare decisis over time in fact ascribes to no real, binding version at all. Furthermore, the constant churn in legal doctrine would render stare decisis so malleable as to become meaningless, rendering all precedents vulnerable to overrule at any time.

    In the Dobbs draft opinion, Justice Alito is careful to note that the ruling does not threaten precedents that do not concern abortion. But the draft opinion suggests far more malleability in all forms of precedent than Alito’s assurances. The draft opinion perpetuates a weakened version of stare decisis that undermines the finality of any decision, at great risk to a politically divided nation.