Appellate Advocacy Blog

A Primer on Ninth Circuit Binding Dicta: Judge Forrest’s Stein v. Kaiser Concurrence

Early in law school, you probably learned that dicta is non-binding.  Later, you also probably realized that application of this dicta rule, like so many other rules, depends.  For example, our 1L persuasive writing assignment last semester included a case discussing when Supreme Court dicta can be controlling.  Moreover, the Ninth Circuit has sometimes employed a “binding dicta” rule.

This week, Ninth Circuit Judge Danielle Jo Forrest detailed the history of the Ninth Circuit’s “dicta-is-binding rule,” which she called “burdensome and misguided.”  Stein v. Kaiser Fdn. Health Plan, Inc., __ F.4th __, 2024 WL 4271950, slip op. at 9 (9th Cir. 2024)(en banc)(Forrest, J., concurring).  In an opinion tracing the use of dicta from Sir Frances Bacon to today, Judge Forrest, joined by Judge Bumatay, asked the Ninth Circuit to join every other circuit in not using dicta as binding precedent. 

Judge Forrest explained a rule demanding courts follow some dicta “lacks legal foundation,” “causes unnecessary inefficiency,” “wastes resources,” and “is contrary to the common-law tradition of judging, the jurisprudence of the Supreme Court and every other circuit court in the nation, and the Constitution.”  Stein, Slip op. at 9.  According to the concurrence, the Ninth Circuit “stand[s] out like a flamingo in a flock of finches in treating dicta as binding.”  Id. at 16. 

Judge Forrest noted the Ninth Circuit initially took this “flamingo” approach to dicta without briefing or full discussion, stating:  “Irony upon irony, th[e] pronouncement about dicta was, itself, dictum,” as it came in an en banc case concurrence joined by only four total judges.  Id. at 16-17.  Moreover, she explained the authority “cited [in the dicta-rule-creating concurrence] do not support the dicta-is-binding rule.”  Id. at 17-18.  Thus, “the dicta-is-binding rule did not have the numbers to be real law,” yet “it quickly begat progeny.”  Id. at 18. 

Moreover, even if there had been a justification for a binding dicta rule, perhaps “because [the Ninth Circuit] thought the expansion of judicial decision-making authority would be limited” by the rule, in practice “it has not turned out that way.”  Id. at 18-19.  The history and application of the Ninth Circuit’s rule left Judge Forrest to “wonder:  if all the other federal appellate courts can figure out what is and isn’t dicta without destabilizing their law, why can’t we?”  Id. at 19.

As appellate lawyer Cory Webster wisely notes, Judge Forrest’s Stein concurrence could be required reading in a course on the law of judicial precedent.  Cory Webster, LinkedIn, https://www.linkedin.com/feed/update/urn:li:activity:7245432020770693122/.  The opinion is also a very interesting read on dicta, and on persuasive opinion writing.  I will definitely be making the opinion required reading for my class, and I hope you enjoy reading it too.

Different Strokes for Different Courts

In a new book to be published in November, Second Circuit Judge Jon O. Newman and Duke law professor Marin K. Levy detail the many different rules adopted by the federal circuit courts. Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals, grew out of Levy’s clerkship experience in the Second Circuit where she wondered whether other circuits used a “non-argument” calendar for a limited range of cases. When she asked the clerk of court that question, she learned that the courts operate in silos and know little about what sister courts do.

At a Constitution Day event sponsored by the Supreme Court Historical Society (September 17), the two coauthors explained that the book reflects an examination of local rules and practices, as well as interviews with chief judges and surveys of court clerks. During their talk, Judge Newman and Professor Levy highlighted three practices from different circuits.

One concerned a situation that often bedevils appellate counsel. You have argued the case or made a motion that is fully briefed, and then you wait and wait for a disposition. Counsel will often sit in frustration at the delay, but rarely attempt to bring the situation to the court’s attention so as not to create a bad impression. In one state court appellate case I argued, I waited more than two years for the court’s opinion, which finally issued the decision earlier this year. When I served on a panel at a conference with another judge from that circuit, I asked whether there was anything I could do to encourage a decision. She told me that there really was nothing to do, although she mentioned a legendary response that had occurred on one occasion: a brave lawyer filed a birthday card on the second anniversary of oral argument. A decision issued soon afterwards. I chose not to follow that approach but received a favorable decision two years and one month after the oral argument.

Many advocates similarly eschew some type of prod to the court. They may file supplemental authority to remind the court that the case is pending, but take no other action. Newman and Levy, though, learned that the Ninth Circuit encourages counsel to contact the clerk over a delayed motion or appeal. The advisory committee note to Circuit Rule 25-2 tells counsel to send a letter to the Clerk. It sets timelines for when a delay is deemed unreasonable: a motion pending more than four months, no notice of oral argument or submission on the briefs within 15 months of the completion of briefing, a merits decision more than nine months after submission, a mandate taking more than 28 days to issue, or a petition for rehearing pending longer than six months. No other federal circuit has made similar provision to address unreasonable delay.

Also unique among the federal circuits is the Federal Circuit instructions on who to refer to the district court in a case. For the past decade, the Federal Circuit has published Internal Operating Procedures that includes Procedure 11, which describes citation rules. Rule 9 of that booklet indicates that it is disrespectful to the originating court for counsel to refer to it as “the court below,” “the lower court,” the lower tribunal,” or “the judge below.” Instead, the court insists that counsel use “district court,” “trial court,” “district judge,” “trial tribunal,” or “court.”

The third unique example the authors discussed was the Second Circuit’s deadline for briefing. Federal Rule of Appellate Procedure 31(a)(1) requires the appellant to file a brief within 40 days after the record is filed. Replies are due within 30 days of that brief, while a reply is due within 21 days as long as it is at least seven days before argument. Rule 31(a)(2) authorizes a court of appeals to shorten the time by local rule or order in a particular case. Yet, the Second Circuit, by local rule, has lengthened the time, requiring the opening brief within 90 days to render unnecessary motions to extend the due date. The parties may confer and set their own times, as long as it does not go beyond 90 days. The court will deny motions to extend beyond that absent “a most extraordinary circumstance.”

A multitude of other differences exist between circuits. For example, in most circuits, you learn of the judges who will serve on your panel 30 days before oral argument. However, in the Fourth and Seventh Circuit, the clerk posts the panel the very morning of argument.

Although it may seem odd that different circuits follow such different rules, it pays for an advocate who argues in more than one circuit to know the differences. Written & Unwritten performs a valuable service for that traveling advocate.

Should We Still Avoid Contractions in Formal Legal Writing?

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

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

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

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

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

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

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

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

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

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience.  While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments.  As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.”  See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024).   The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance.  Id. 

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts.  See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024).  According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders.  Here is America First Legal’s misconduct complaint to the Seventh Circuit.  Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders.  Their letter is here.  The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy. 

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged.  For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.”  Raymond, Republican US Senators.  Most court rules following the ABA’s resolution are facially neutral, but not all.  See generally Buble, GOP Sens. 

Whatever the fate of the three Southern District standing orders, experienced lawyers should  work to be stronger mentors.  We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs.  In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time. 

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

The New Rules for AI-Based Research

The Fifth Circuit has published for comment the first federal appellate rule on the use of artificial intelligence (AI) in filings. It would require that the person filing “certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human” as part of the certificate of compliance.

A number of recent incidents have highlighted the danger of reliance on AI. As has been widely reported, two New York lawyers were sanctioned for using AI to draft a brief that contained seemingly valid citations precisely making the point they wanted to for the court, but turned out to be entirely made up. Recently, the Washington Post reported that a young, overextended Colorado attorney relied upon AI for a brief that also included fictious citations, was sanctioned by the court, and fired from his position at the law firm. In another instance described in the same article, a Los Angeles law firm was called out for a similar offense by opposing counsel and fined $999 by the court; it blamed a young lawyer who resigned from the firm after the fictious cases were discovered.

The Washington Post article quoted a Brown University computer scientist that what is “surprising is that [AI programs] ever produce anything remotely accurate.” The scientist, Suresh Venkatasubramanian, explained to the Post that these programs are designed to mimic conversation by developing seemingly realistic responses to whatever inquiry is submitted. It realizes that a legal brief includes citations to precedent, but does not read or synthesize the actual cases, so it creates its own.

The topic was part of the discussion with state chief justices at a National Center for State Courts meeting I was privileged to moderate just before Thanksgiving. As one chief justice expressed to me in private conversation afterwards, she was surprised that it happens at all because she could not imagine a lawyer filing a brief that relies on a case that had not been read by the attorney.

The Fifth Circuit’s proposed rule appears to make that the standard. Within the Fifth Circuit, a judge, Brantley Starr of the U.S. District Court for the Northern District of Texas, has already amended the rules for filings in his court, to require a certificate attesting that the filing contains nothing drafted by AI or that a human being checked any language drafted by AI for accuracy. The judge’s rule calls AI platforms “incredibly powerful” and useful for  and have many uses in the law for “form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument.” One thing he insists it is not useful for is legal briefs.

Judge Starr explains that, at least as currently devised, AI is “prone to hallucinations and bias.” To put it plainly, he says “they make stuff up—even quotes and citations.”

Judge Starr also worries about bias in the programming. He explains that “attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients.” Neither a computer program nor those who devised adhere to an oath. He states,”[t]hese systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth).”

The judge is prepared to be convinced otherwise. He has put out a challenge: “Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.” Until that happens, the judge “will strike any filing from a party who fails to file a certificate” and is prepared to Rule 11 sanctions for an inaccurate filing.

These early rules proposals are likely to proliferate, particularly because online legal research systems, such as Westlaw, Lexis, and Casetext, now also offer AI-based research assistance that may blur the lines between lawyer and computer in ways that may not be predictable. Appellate practice is changing once again.

Stigmatizing AI Usage

Last month, fellow blogger Charles Oldfield posted about some courts requiring lawyers to disclose their use of AI in preparing briefs for the court.  In the post, he noted that, while the goal seemed to be ferreting out the use of generative AI, the requirements may have inadvertently stretched beyond that scope.  But both instances raise the questions of why and how to cite AI.

I’ve been attending a wonderful conversation group of legal writing professors, led by Professors Kirsten Davis from Stetson University and Carolyn Williams from the University of North Dakota, discussing legal writing and generative AI. And a recent discussion addressed whether and, if needed, how to cite generative AI in legal writing.

Professor Davis first addressed the question of how we, as legal writers, should view the role of generative AI: as the author or authority, as a co-author, as an assistant, or as a tool. She aptly pointed out that our view of the technology directly informs whether we should cite or disclose our use of generative AI. Professor Williams (author of the 7th Edition of the ALWD Guide to Legal Citation) then addressed the purposes of citation:

(1) allowing the reader to locate the source of the writer’s information;

(2) giving credit to the author of the words or ideas the writer used;

(3) showing the reader that the writer conducted proper research;

(4) protecting the writer from plagiarizing;

(5) increasing the writer’s credibility with the reader; and

(6) providing additional information about the sources used and their connection to the writer’s assertions to aid the reader’s choices about whether to pursue the source.

These considerations made me wonder how those judges requiring disclosure are viewing AI and what purpose they believe disclosure serves.  And it seems their concern has less to do with the technology, itself, and more to do with skepticism that lawyers will use it in a way that violates the rules of professional conduct.

ABA Model Rule 5.1(b) provides that “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”[i]  When a lawyer uses generative AI to draft motions, pleadings, briefs, or other filings with the court, the lawyer is treating the technology as a subordinate attorney and, therefore, should be reviewing the output for compliance with the rules of professional conduct.  This review includes verifying that “each and every citation to the law, or the record in the paper, . . . [is] accurate”[ii] and does not reflect any “personal prejudices, biases, and beliefs.”[iii]  But these same purposes are served when an attorney signs the document under Federal Rule of Civil Procedure 11.[iv]  So including the certification seems superfluous, especially given that supervising attorneys do not habitually credit their subordinating attorneys’ work in drafting.

Requiring the disclosure also fails to serve any of the traditional purposes of citation. Because generative AI rarely, if ever, produces identical output in response to a repeated prompt,[v] a reader cannot use a citation to either verify the accuracy of any assertions or investigate the source any further. And, because generative AI uses predictive language, it is—by design—drawing on the ideas of others represented in the text used in its training; thus, citing it does not serve to give credit to the proper authority or even protect the writer from plagiarism. If a legal writer treats AI-generated drafts as work produced by a subordinate attorney, then the attorney will have already checked the accuracy and validity of legal assertions and associated citations to authority, so the added layer of citing the AI tool(s) used does not further the purpose of establishing thorough research.

With respect to establishing the writer’s credibility, disclosing the use of generative AI might very well have the opposite effect considering highly publicized recent follies involving generative AI and legal filings.[vi]  And this negative effect is likely to be exacerbated by disclosure requirements rooted in skepticism.

Mr. Oldfield included as his final endnote that he “used Word’s Editor in preparing th[e] post.”  I assume the inclusion was done in jest to emphasize the absurdity and breadth of some of the existing disclosure requirements. But it raises an interesting point: by requiring lawyers to disclose their use of AI, are courts discouraging lawyers from using a potentially valuable tool?

In the small group I was in for our legal writing discussion on if and how to cite generative AI-created content, we concluded that asking students to cite their use of AI on submissions would be futile because it would either discourage them from using AI or encourage dishonesty about whether they did. Requiring attorney disclosure feels the same.

And, if the true goal of requiring disclosure is to ensure ethical usage of AI, it is likely to have the opposite effect. Discouraging lawyers from using AI could cause violations of Rule 1.1, requiring lawyers to “provide competent representation to a client” through “legal knowledge, skill, thoroughness and preparation.”  Comment 8 expressly directs that the duty of competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[vii] Discouraged usage might also result in violations of Rule 1.5, requiring only reasonable fees,[viii] if a lawyer avoids using generative AI where the AI could complete the same task in less time, resulting in a higher-than-necessary fee for a client.[ix] And, to the extent required disclosure imposes a stigma on lawyers using generative AI, disclosure requirements could encourage dishonesty about usage, causing violations of Rule 3.3’s duty of candor to the tribunal.

While generative AI has not yet reached a point where it can replace lawyers, it is certainly capable of being a valuable time-saving tool that benefits both lawyers and clients. Lawyers should be encouraged to learn about and understand it, rather than avoid it. And, to that end, disclosure requirements should be abandoned.

 

[i] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/

[ii] https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[iii] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[iv] “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

Fed. R. Civ. P. 11(b).

[v] Charles Ross, Does ChatGPT Give the Same Answer to Everyone?, Medium.com (March 20, 2023), available at:  https://medium.com/@charles-ross/does-chatgpt-give-the-same-answer-to-everyone-521e3e9355a4

[vi] See, e.g., Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, New York Times (May 27, 2023), available at https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.

[vii]ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/

[viii] ABA Model Rules of Professional Conduct, available at:  https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/

[ix] Brad Hise and Jenny Dao, Ethical Considerations in the Use of A.I., Reuters.com (Oct. 2, 2023), available at: https://www.reuters.com/legal/legalindustry/ethical-considerations-use-ai-2023-10-02/

Disclosing the Use of AI

Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.

Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,”[1] and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.”[2] Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.”[3] Generative AI includes things like ChatGPT.

The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.[4]

On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:

All attorneys and pro se litigants appearing before the Court 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. 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. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.[5]

Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI.[6] While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.

Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.

 

[1] https://www.merriam-webster.com/dictionary/artificial%20intelligence

[2] Id.

[3] https://www.merriam-webster.com/dictionary/generative%20artificial%20intelligence

[4]https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[5] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[6] Disclosure: I used Word’s Editor in preparing this post.

Sometimes a Reply Brief Should Explore a New Path

Several times over the past couple of years, I agreed to join an appellate team in a case to help finish the reply brief and make the argument. Its not the optimal way to take on an appeal. Limited time, even when an extension is available and granted, may prevent mastering a complex record. The opening brief might pursue a theory or theories of the case that you find weak or contrary to precedent – and the responding brief may have exploited those flaws.

So why take on a potentially sinking ship? Perhaps you believe that the party whose team you have joined ought to prevail, or that you may help avoid setting a bad precedent. You may even have a theory of the case that you believe capable of prevailing that has gone unmentioned.

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.

Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary.[1] Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.”[2] The Court thus claimed a great deal of unfettered discretion.

Counsel in the position of joining the team at the reply stage should provide the court with a basis to exercise that discretion by finding a way to shoehorn the argument into the reply. Often, I have found, the reply brief makes a point that provides an ideal jumping off point for the new legal theory. It may be the citation of a case that supports the theory, an opponent’s argument that opens the door to the theory as a response, or the responsive brief’s claim that the opening brief ignored a point that the trial court made. More often than not, when I have used that tactic, the appellate court has accepted it and found it dispositive. Even if you are not an eleventh-hour addition to a case, read the responsive brief for opportunities to explore a new theme that might beat the path to victory.

 

[1] United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc) (citations omitted), cert. denied, 143 S. Ct. 95 (2022).

[2] Id.

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!