Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Saturday, March 23, 2019
You never get a second chance to make a first impression.
They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.
The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences.
Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions.
Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?
Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important.
For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out:
1. Write with incredible pith at the outset. Top legal writers put their best material in the start.
2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences. So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression.
3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments.
4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body.
5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.
6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff.
Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent."
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do:
If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process).
And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts:
Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.
And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view:
As the district court and the panel majority recognized, we have before us just such an extreme malfunction.
Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch:
The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”
Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept:
Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”
Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.
This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical.
In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft.
Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand":
First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it.
Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority:
The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.
Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance):
It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case.
Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason):
Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.
First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme:
This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I.
Later, Judge Thompson uses a quote from the losing party to trounce their position:
But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.
And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far:
The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.
Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Monday, February 11, 2019
If you are interested in appellate law and can make it to Fayetteville, Arkansas, on March 28-29, I highly recommend that you attend the 2019 Justice Donald L. Corbin Appellate Symposium. I spoke at the inaugural symposium last year, and it was one of the appellate conferences that I have attended.
The line-up of speakers is amazing, including:
- Howard Bashman
- Judge Duane Benton (8th Cir.)
- Judge Mary Beck Briscoe (10th Cir.)
- Judge Ralph Erickson (8th Cir.)
- Judge James E. Graves, Jr. (5th Cir.)
- Kannon Shanmugam
- Chief Judge Lavenski R. Smith (8th Cir.)
- Judge Jane B. Stranch (6th Cir.)
The line-up also includes several state court judges and other attorneys, including my friends:
- Lee Rudofsky (former Arkansas Solicitor General, now at Walmart)
- Prof. Abigail Perdue from Wake Forest Law
- And our own Joe Regalia
Honestly, if there wasn't a little boy turning 1 that week at our house, I would seriously be considering a trip to Arkansas that week. I hope that Joe will write a post or two on the Symposium.
If you would like to register, you can follow this link.
Sunday, February 10, 2019
Hi everyone! I'm grateful to be included as an author on the Appellate Advocacy Blog. Please bear with me as I get the hang of it.
For my first post, I wanted to address something that has been happening with alarming frequency in my practice. A little background--in 2015, I opened my appellate practice after teaching lawyering skills for ten years. Since returning to practice, I have been (perhaps naively) surprised at what attorneys will say in briefs. In my pre-teaching life as a young(er) attorney, the joy in writing briefs was that the record was the record and I didn't have to argue facts. (Insert your favorite "in my day, we had to walk 4 miles through the snow to get to school in the morning...."). And now in my post-teaching life, I find myself responding to Statements of Fact that omit relevant facts, and misrepresent others. Is this a new trend in line with the whole "Alternative Facts" movement? And what to do about it?
Of course, everyone knows the rules here. Federal Rule of Appellate Procedure 28 requires that an appellant's brief contain "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record." The state corollary in Missouri, where I have been practicing the last two years, defines the Statement of Facts as "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Even though the terms "relevant," "concise," and "fair" might have different meanings to different writers, the rules just don't provide for omission of key facts, or reinvention of facts in the record.
And of course there's Model Rule of Professional Conduct 3.3 requiring "candor to the tribunal." A lawyer may not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
I've discovered a few additional imperatives when reviewing your opponent's statement of facts that I hope you will find useful.
- Look carefully for material omissions.
Since our first year legal writing class, we have learned that attorneys can't omit bad facts in the statement of facts. We are taught how to "artfully" deal with the bad facts, or hide them in plain sight, or just admit them and get the whole business of bad facts out of the way. But in reality, bad facts are omitted from the Statement of Facts all the time.
Example: Initially, the parties were granted joint legal and joint physical custody over the child, but Mother had "final say" if the parties could not agree. After the first custody modification proceeding, that "final say" language was removed from the parties' parenting plan and the parties were ordered to share all decision-making rights.
So the way these facts are presented, it would seem that as a result of the modification proceeding, neither parent had "final say" in making decisions for the child, right? Wrong. While the facts as stated were themselves accurate, and the words "final say" were removed from the parenting plan, the writer of that brief omitted the following: "in the event that the parties cannot agree, Mother shall have the discretion to make the final decision. . . ." The prior modification decision wasn't at issue in this appeal, but still. Less than scrupulously accurate? In your response, point out the omission and correct it, clearly and concisely.
2. Identify inaccurate inferences based on trial testimony, or "I don't think that word means what you think it means."
For most appellate lawyers, our job is to identify the meanings of words. I love nothing more than a good old-fashioned plain language statutory interpretation argument. But beware of the tendency of some to assume an agreed-upon meaning of what was said.
Example: Mr. Smith consented to his attorney's withdrawal, when Mr. Smith said "okay" after the trial court stated it was granting the attorney's motion to withdraw.
As anyone reading a trial transcript can attest, instances of the word "okay" occur more frequently than we'd like to believe, and do not usually indicate consent. Get out the old dictionary (I always go with the OED because it is so comprehensive), and point out that the word "okay" also means "introducing an utterance or as a conversational filler, typically without affirmative or concessive force, but rather as a means of drawing attention to what the speaker is about to say: well, so, right." Done and done.
3. Beware the Projector, or "I know you are but what am I?"
After you've filed your brief, whether you're representing the appellant or the respondent/appellee, be prepared for allegations of inaccuracy in your Statement of Facts. Urban Dictionary defines"projection" as "[a]n unconscious self-defence mechanism characterised by a person unconsciously attributing their own issues onto someone or something else as a form of delusion and denial."
Example A. Broad accusations: The appellant's one-sided, argument-riddled statement of facts is unfit to be a statement of facts in an appellate brief.
How to respond to this? I believe in reiterating the scrupulous accuracy and citations to the record for your statement of facts. Nip that one in the bud, but address it.
Example B. Specific false allegations: In his Statement of Facts, Mr. Smith states that the premarital portion of his retirement account was valued at $200,000, without disclosing it was just his testimony.
Actual sentence in the Statement of Facts: "Mr. Smith orally testified that, the premarital portion of the retirement account was valued at $200,000."
What to even do with that statement? Again, just unpack it for the court, explain the omission and the inaccurate nature of the claims. My suggestion in brief writing, is to tolerate none of this kind of manipulation, even if the issue itself isn't one for the court of appeals. Be unwilling to allow another officer of the court to paint your writing as manipulative or deceptive.
4. A few final tips for disputing untruths:
- Be short and direct. Leave the outrage at the door. (i.e., don't say "nowhere has the undersigned read a more egregiously inaccurate Statement of Facts").
- Avoid adjectives and adverbs ("Respondent is incredibly, blatantly wrong"). I like to say simply: "Respondent is wrong."
- If you are the respondent, better to first set the record straight and dispute inaccuracies made by your opposing counsel; then bolster your own story. If you are the appellant, brace for the attack, and then respond in your reply brief.
- This is a good time for bullet points. Just list everything in the opposing Statement of Facts that's inaccurate or misleading, or omits information, in bullet form.
- Move on to your own story as quickly as possible.
In the world of appeals, we fancy ourselves the intellectuals and academics of legal practice--so why would any appellate attorney wants to put his or her reputation on the line by omitting and reconstructing facts in the Statement of Facts section of a brief? And then, is it your responsibility to correct these mischaracterizations? I think yes. Does it matter how significant the mischaracterizations are? I think no.
Correct all outright lies, omissions of critical facts, and suggestions of blame-shifting. Use your allotted word count to be scrupulously honest.
And for next time---misrepresenting legal authority. Or I'm open to suggestion!
Thanks for reading,
Thursday, October 25, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”
Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”
To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.
Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”
Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”
Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.
Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”
Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”
I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.
Special thanks to Alison Doyle for her help with this blog post.
October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Monday, October 22, 2018
Two weeks ago the Seventh Circuit issued a benchslap to a lawyer who modified her brief after being asked to resubmit her brief with a redacted appendix. The facts of the case are not pretty. On March 30, the attorney filed her brief (after 5 time extensions, one of which she requested when the brief was a day late). Opposing counsel realized that the appendix to her brief contained material that the court had ordered redacted.
On April 6, the granted the attorney's motion to file a corrected appendix. The ordered directed her to "'file by April 11, 2018, a new electronic version of [the] brief that includes the fully-redacted appendix.'" She complied with that order, but also made "substantial changes in the body of the brief, altering propositions of both fact and law." Opposing counsel, once again, caught the discrepancies, and asked for more time to address these changes. The court granted that request, but also directed the attorney to "file another brief that would eliminate the substantive and wording changes." The Seventh Circuit cited its opinion in Khan v. Midwestern University, which addressed differences between electronic and paper versions of a brief. In Khan, the court noted that paper and electronic versions must be identical.
The attorney resubmitted the brief, claiming that it was identical to the March 30 version, but it wasn't. The attorney claimed that the changes were accidental and asked the court if she could "re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version" and from the March 30 version. The court, rather fed up by this point, issued an order giving the attorney "14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of [her] repeated alternations of a brief that should have changed."
In her response, the attorney claimed that she thought that the order allowing her to make redactions also allowed her to make substantive changes to the brief. The court "accept[ed] her assertion that she believed that she could do so," but noted that "errors made with an empty head are hard to excuse." She blamed "the second error on infelicitous naming of files on her computer." The court found this excuse harder to swallow, noting that she never compared the documents or reviewed date stamps. According to the court, "Making an error once is bad; making it twice in a row--and in the teeth of the warning in Khan . . . is unfathomable."
Despite the harsh language, the attorney got off easy--just a public reprimand.
I find this opinion particularly interesting given the uneasy alliance between electronic and print copies of briefs. Many judges are now working off of electronic copies of briefs, yet many circuit still require paper copies to be filed, sometimes a few days after the e-copy is due. It is imperative that attorneys file identical copies. As the Seventh Circuit noted, this requirement ensures that everyone is working for the same version of the document. I am sure that this attorney learned her lesson.
Sunday, July 8, 2018
With Justice Kennedy's retirement and confirmation hearings for his soon-to-be-named replacement looming, public discourse is thick with talk of stare decisis. Will/should a post-Kennedy Court overrule Roe v. Wade (or, more accurately, the "central holding" of RvW that survived Planned Parenthood v. Casey)? Obergefell v. Hodges?
I won't try to answer these questions (and, of course, neither will the nominee). And I can't begin to address, in anything short of of roomful of treatises, the complexities of the customs and law of precedent. But as the summer grinds on, I'd like to devote a few of my posts here to judicial undoing: the circumstances, process, and advocacy of overruling.
This post will get things rolling with a simple point: undoing is part of the regular—albeit not routine—order of the United States Supreme Court. Counting can get tricky, but we can say with confidence that the Court has overruled its own precedent well over 200 times.1 According to the Government Publishing Office, the Court overruled itself 236 times heading into the October 2017 term; that number is now 238 or 239, depending on how one accounts for what the Court did to Korematsu v. United States in Trump v. Hawaii. According to the Washington University Supreme Court Database, the Court has formally altered precedent 251 times heading into OT 2017. 2
Of course the stories behind these numbers often fascinate. Including the stories of the advocacy: of Thurgood Marshall and the NAACP Legal Defense Fund in Brown v. Board of Education, of summer associate John Hart Ely’s extensive work on brief in Gideon v. Wainwright, of Seattle associate Jeffrey Fisher’s brilliant briefing in Crawford v. Washington (during the same term that he argued—and won—another blockbuster, Blakely v. Washington), of Ruth Bader Ginsburg in Duren v. Missouri (Chief Justice Burger: “Mrs. Ginsburg, you may lower the lectern if you would like.”).
And there are stories in the numbers themselves. One can, crudely, track the shifts in the role of the federal judiciary from the we’re-not-undoing-much-because-there’s-not-much-to-undo Marshall Court (3 overrulings in 34 years) to the fast-pace undoings of the post-Frankfurter Warren Court (34 overrulings between 1962 and 1969). One can find, as Jonathan Adler did in a recent post at the Volokh Conspiracy, data that might give us insight into what comes next: the Roberts Court, particularly since the overruling-heavy 2006-07 term, has overruled precedent at a significantly slower pace than its postwar predecessors. Although that might change. Occasionally, the data appear to tell the story of a shift in personnel. From 1954 to early 1962, the Warren Court overturned precedent relatively slowly. But then, in the wake of the wrenching decision in Baker v. Carr (listen to this episode of the More Perfect podcast), Felix Frankfurter suffered a stroke and retired from the Court. He was replaced by Arthur Goldberg. It’s quite fair to say that the two justices were polar opposites on issues of judicial restraint. Perhaps it’s coincidence, but the Warren Court more than tripled its rate of overruling after the shift.
In my next few posts, I'll dig more into the Supreme Court and judicial undoing: the first times, the last times, the next times, and so on.
- I swiped the title of this post from Michael Lewis's outstanding book about Daniel Kahneman and Amos Tversky. Please read it.)
- This doesn't count the first, quite famous, non-judicial undoing of a SCOTUS decision: the first post-Bill of Rights amendment to the Constitution. In 1793, the Court in Chisholm v. Georgia held that Article III, section 2 of the Constitution abrogated state sovereign immunity and thus authorized a federal court sitting in diversity to hear a war-debt claim by citizens of South Carolina against the state of Georgia. Reaction was swift: by early 1795, Congress approved and twelve states ratified the Eleventh Amendment, which clarified that the judicial power "shall not be construed" to extend to diversity actions brought against states. Other constitutional amendments have directly undone decisions of the Court: see, for example, the Sixteenth Amendment (authorizing Congress to impose income taxes; overturning Pollack v. Farmers Loan & Trust Co.), the Twenty-Sixth Amendment (lowering the voting age in state and federal elections to 18; overturning Oregon v. Mitchell), and the Section One of the Fourteenth Amendment (extending state and national citizenship to all persons born or naturalized in the United States and subject to its jurisidicion; overturning Dred Scott v. Sandford. ↩︎
- The actual number of cases overruled is higher, as the Court occasionally will overturn a line of precedent. In June, for example, the Court in South Dakota v. Wayfair overruled Quill Corp. v. North Dakota and National Bellas Hass Inc. v. Illinois Department of Revenue on the issue of state taxation of out-of-state retailers. Quill thus occupies a rare place in the world of bizarro stare decisis: it both overturned precedent (Bellas Hass, in part) and was itself overturned. Also on the whiplash list is National League of Cities v. Usery (overruling Maryland v. Wirtz; overruled by Garcia v. San Antonio Metro. Transit Authority. ↩︎
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Thursday, March 15, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?
Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.
Major premise: The speed limit where defendant was arrested is 45 MPH.
Minor Premise: The working-perfectly radar gun clocked defendant at 63 MPH.
Conclusion: Defendant was speeding
In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.
1.1 The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.
1.2 The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself.
2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.
2.1 The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:
Major premise: Climate change is making things warmer
Minor premise (flawed): weather over a three-month period matters to climate change
Conclusion (faulty): Climate change is over or solved.
2.2 The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.
Major premise: Some cities offer Segway tours of tourist areas.
Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.
Conclusion (faulty): Philadelphia does not have Segway tours.
2.3 Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.
It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.
] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).
March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)
Saturday, December 16, 2017
What they say about cross examining and depositions is also true for legal writing: asking the right questions is how you get the right answers. But legal writing is trickier — because instead of asking questions directly, you have to convince your reader to ask them for you.
That’s because reading is solitary. When we read something, we have the luxury of re-framing the questions as we go. We don't need to ask the questions that the author asked. And the big questions often don’t spring from the page at all: they are followup questions formed as we chew on ideas.
Early on as law students, we are told something about questioning. The infamous IRAC writing mold, for one, is really just a simple question and answer. You identify the issue — a question about whether a rule applies to a set of facts — then you offer an answer by explaining the rule and applying it. And we also learn a lot about the law through the Socratic method, which is pure questioning and answering.
But most of us don’t think about asking questions when we write a legal document. Indeed, in your brief, you might not ask your reader any direct questions. The thing is, for your reader making the decisions, it’s all about the questions. That is how we humans process information. We ask whether the propositions we read make sense. We ask whether another proposition might make more sense. We ask whether the question posed is even the right one to ask in the first place.
Practically, it’s easy to lose control of which questions your reader is asking when they read your document. A simple issue, like whether a company is liable when one of its workers gets in a brawl with a customer, will spawn tons of new questions for your reader to answer. Some you will expect and are straight-forward; many you will outright pose to your reader as you work through the issues. For example: “Was the defendant an employee?” and “Was he acting within the scope of his employment?"
But as you get into the details, it becomes harder and harder to control the questioning process. Your reader will be asking: “What type of worker should we treat as an employee?” "Does that seem fair?" And so on. You will anticipate some of these tough questions, but it takes a lot of work and careful thought to anticipate them all (and better yet, to ensure your reader doesn’t start asking new questions that will lead them to a bad answer for you).
The power of of your reader’s questions throughout the reading process is profound. Say you represent a company who gave confusing instructions to a worker, which resulted in an accident. If after reading your brief and the opposing party’s brief, your reader asks: “Shouldn’t an employer be liable when the worker was simply doing what she was told?”— you might as well call it in.
But if you guide your reader to a different question instead, you might be getting somewhere: “Isn’t it unfair to hold a company liable when a worker knew the instructions were confusing and never asked the company for guidance—which would have easily prevented the harm?”
Now the how-to. To get your reader to ask the right questions, you first need to figure out the right answers. It’s not all that different from cross examining or deposing a witness. You write out the admissions you want first, then the questions come.
These two steps are a refining process. You start with a general question you need the reader to answer. You then do a dance of anticipating your reader’s possible follow-up questions and figuring out how to guide them to the right ones. You have myriad tools in your arsenal to guide readers through this questioning process. You have the law; you have policy; you have your writing style — anything you can use to convince your reader to ask the questions in a way that leads to good answers for your client.
So maybe you start by posing this general question for your reader: “does a three-year or five-year statute of limitations apply to a battery claim?” (knowing you need your reader to answer that it’s three years). A reader given this question will first wonder whether any courts have already addressed which period applies to this sort of claim. If not, your reader might then wonder how courts go about classifying torts under the proper period. Anticipate these questions and guide your reader to the right ones.
Let’s say no courts have directly addressed this question, but you find some authority that suggests assault, which is similar to battery, falls under the three-year period. You might first guide your reader through the self-questioning process like this: “No courts have held that battery falls under the three-year period.” You are anticipating the reader’s first question and quickly guiding them to where you want to go. Your reader’s next question will be: “Ok, then how do courts figure out which period applies to a new tort?”
Now you come to a crucial part of the questioning process: getting your reader to ask themselves a very narrow and specific question about the law; a question that will likely govern the outcome.
In the U.S. Supreme Court’s individual-mandate case, for example, how parties framed the commerce clause question was crucial: “Doesn't the commerce clause bar Congress from forcing people to buy things?” Or instead: “Doesn't the Clause allow Congress to regulate a market that all of us are already a part of — the healthcare market?” Both questions were reasonable, and each would lead to a different result. Which question judges and justices chose depended largely on how the lawyers guided them.
Getting back to our statute-of-limitations example, you have that caselaw suggesting assault falls under the three-year period. And you know assault is similar to battery. So you want your reader to ask themselves this question: “Which tort is similar to battery?” Because we know that answer will be a good one for us.
Your questioning process might unfold like this: “Which period applies to a tort turns on whether the tort is more similar to the torts falling under the three-year period, or instead, more similar to torts falling under the 5-year period.” You’ve now primed your reader to ask the right question: “Which tort is battery most like?” And because this was all part of our plan, we know the answer: assault (triggering the three-year period we wanted).
There are lots of ways to push your reader towards the right questions. Sometimes it’s as easy as just writing the question for them: “The crucial question is whether battery is like assault.” Or you can be more subtle, using rhetorical questions or hypotheticals. Justice Kagan is a master of guiding readers to the right questions like this.
For example, in Justice Kagan’s dissent in Lockhart v. U.S., she posed a question to her readers:
Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?
Justice Kagan wants the reader to ask themselves this question outright — and she knows there is no bad answer for her position.
Judge Jennifer Dorsey, a fantastic writer in the U.S. District Courts, loves crafting the perfect questions for her readers, like this gem (which leads off an entire section of one of her orders):
The threshold question: can Carrion raise a Johnson challenge under § 2255 when the sentencing judge did not expressly state that he relied on the residual clause?
Judge Dorsey is also a master of the hypothetical-string of questions, like she deftly uses in this order:
Did defendants make material statements to him, or does he just believe they did? Who made them? When? And what was false about them?
Judge Jay Bybee of the Ninth Circuit is similarly sensitive to this questioning process, directly posing a series of questions for his reader to ask in this section of an opinion:
If we insist on reading “not less than 7 days” to mean “not more than 7 days,” why should anyone reading our opinions trust that he understands them correctly? If words are so malleable, might we routinely read our own precedents as saying the opposite of what they clearly say? May one panel simply rewrite another panel’s opinion when it thinks the prior opinion is “illogical?” And where might our creativity lead us with provisions of the Constitution that don’t make as much sense as we would like? May we amend even the Constitution at will? If we think that when Congress says “less” it actually means “more,” we should not fault anyone who might, as a result, discount other things that we have written.”
Justice Gorsuch is also aware of the importance of questioning, often framing legal issues with discrete questions for his reader — and expressly guiding his reader to the questions he wants them to ask:
The narrow question raised by this pretrial motion is whether, if Antoine Watts is convicted of possessing with intent to distribute five grams or more of crack cocaine, the court will be compelled to impose a minimum . . .
The broader question is whether federal courts will be required, for the next five years, to perpetuate a congressionally recognized injustice . . .
Judge Patricia Wald is a master of setting up carefully-constructed, nuanced legal questions that will guide her reader to the answer she wants:
This case presents a straightforward, but nonetheless hard, question of law: Has the United States waived sovereign immunity for a back pay award to an individual denied federal employment in violation of his constitutional rights?
And perhaps one of the best examples of how a simple question can frame an entire way of looking at an issue: Kathleen Sullivan’s brief in SEC v. Siebel:
“Is someone riding around a golf course from shot to shot really a golfer?”
At bottom, the important thing to remember is that any critical reader will process your writing by self-questioning. So anticipate those questions and answer them. But better yet, figure out how to guide your reader to good questions in the first place.
Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. The views he expresses here are solely his own and not intended to be legal advice.
Saturday, December 9, 2017
We are taught that writing with the infamous IRAC moniker is easy, you just: (1) identify the issue (a question about whether a rule applies to facts) (2) explain how the rule works, (3) discuss how this rule applies to the facts, and (4) finish with a brief conclusion that explains how everything comes out. Sounds good in theory, but real life is too messy for IRAC (or IREAC, CREAC, or any other acronym).
After all, you can rarely answer a legal question in a single, simple: Issue/rule/application/conclusion format. Once you dig into a generic, black-letter rule, more issues spawn—more questions about how parts of the rule apply to your facts. A simple issue, like whether a company is vicariously liable for a worker’s tort, can birth tons of “sub” issues. For example: “Was Jory an employee?” and “Was he acting within the scope of his employment?” So where is our trusty IRAC now? Is it: IRIIAC?
The truth is, IRAC isn’t a perfect framework—a perfect framework doesn’t exist. But IRAC can be a powerful tool if you apply its principles and stop getting hung up on the moniker. To make IRAC more useful, we suggest you think about it a bit differently—in particular, the I and the R parts.
Let’s start with the I. The term “issue” often troubles legal writers. What, exactly, is an issue? To make the concept of an issue more useful, consider both its definition and practical use. An issue is simply: “any legal question about how a rule applies to a set of facts.” So: “Did Jory commit battery?” is an issue, as is “Does the relation-back doctrine apply to the defendant’s complaint?” In other words, “issue” is a fancy label for any legal question.
More important is what we do with issues—what’s the point of giving a legal question this special name? It’s all about signposting. We refer to issues just to remind our reader that when we analyze rules and facts, we should start by telling them which particular rule and set of facts we will next address. It’s an organizational tool, nothing more. So if you need to walk your reader through four overarching legal questions, you roadmap those “issues” for your reader first.
Now for the fun part: the R. We usually learn that the rule section is where you generally explain the rule. But consider a slightly different perspective. What you are really doing here is crafting new and more useful rules for your reader that are fashioned for your case’s facts .
First you take a clunky, black-letter rule that doesn’t cleanly fit yet. After all, black letter rules weren’t made for your case (or any other case in particular). They are a starting point.
Then after researching the law you refine that generic rule into new ones that more closely fit your facts. Think about it like this. You start with a lump of marble—your general rule. You then slowly chisel it into a statue—the more specific and bite-sized rule or rules that cleanly address your facts.
To see why refined rules are better, take a simple example. Imagine your client is sued because one of its employees punched someone during an unapproved break. Which rule is more effective?
A generic rule, like: “An employer is not liable when an employee commits a tort not within the scope of employment."
Or a more refined rule that you crafted yourself:
“This court has consistently held that when an employee takes a break without his employer’s permission, the employer cannot be liable for what the employee does on that break.”
A rule refined for your facts like this boxes in the judge and the other side, making it clear how the rule applies to your facts. Yes, you are explaining your rule. But you are also creating a new rule altogether.
Sounds good, but how exactly do you refine rules like this? There are two ways.
First, you can divide the rule into smaller parts. This allows you to discuss the rule in bite-size chunks (which is a lot easier to apply). Sometimes the benefits of dividing the rule are obvious, like if courts already separate the rule into elements.
Other times, you realize it makes more sense to separately analyze different aspects of the rule even though no court has told you so. For example, maybe you identified two situations where a rule commonly applies, say in cases of intentional behavior and cases of reckless behavior. You could craft two new rules: one for intentional conduct and one for reckless.
When crafting new, smaller rules, you have a few options for organizing how you discuss them. One option is to create separate sections in your document; each section explains and applies the new, refined rule. This works best anytime your new rules require a lot of explanation and application.
Let’s explore an example. You research the law and decide that the defendant can meet the intent rule for battery if either (1) he intended to injure or (2) he was reckless about injuring. You could divide this intent rule into two new rules like this:
"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both theories.
Intent to injure
[Explanation of the intent to injure rule]
[Explanation of the reckless injury rule]"
Another option is to discuss your new rules in the same section—and then apply each new rule separately. If you go this route, use separate paragraphs and signposts to tell your reader exactly which rules you are explaining and applying where. Then apply each separate rule in the same order that you explained them. For example, taking the same new rules again:
"Courts have held that a defendant intended a battery if either (1) he intended to injure or (2) he was reckless about injuring. Here the defendant qualifies under both.
Courts have held a defendant intends to injure . . .
As to reckless injury, courts have held . . .
The defendant intended to injure here because . . .
The defendant was reckless here because . . . "
In addition to dividing, you can also refine a rule by adding clarifying details about how the rule works. Anytime it’s not obvious what a rule means, you should consider adding clarifying details to make it clearer. So instead of saying an employee’s conduct must be within the “scope of employment,” you can add detail: “scope of employment, which includes an employee’s specific job duties and anything roughly related to those duties.” By creating more specific rules that fit with your case’s facts, you guide your reader to how the case should come out.
Most important, though, is that good lawyers repeat this rule-refining process as many times as they can. Above we refined the generic, black-letter rule for intent into two new rules—one for intentional acts and one for recklessness. You would want to try to refine these rules again, either by division or adding details about how they work. And once you’ve refined that rule, try to refine it again, on and on. The more specific and bite-sized you can make your rules, the better your reader will understand you (and the more persuasive your writing will be).
Consider your new intent to injure rule. You could refine it by adding clarifying details: “Courts have held that a defendant intends to injure if he wanted to hurt the victim, even in a minor way—he need not intend to commit the injury that the plaintiff actually suffered.”
- An issue is simply a question about whether a rule applies to a set of facts.
- Identifying issues can be helpful because it usually means you should include a signpost for your reader: “Hi reader! Next I am talking about the question of whether the facts here are an intentional battery.”
- The rule explanation process is really about taking charge of rules and refining generic standards into more specific versions that cleanly line up with your facts.
- You can refine rules in two ways: (1) dividing them into smaller rules or (2) adding clarifying details about how the rule works.
- Don’t stop after you’ve refined a rule once. Try to refine it as many times as you can. The more bite-sized your rules and the more cleanly they apply to your case, the more persuasive you’ll be.
Joe Regalia is an adjunct professor of law at Loyola University School of Law, Chicago and an attorney at the firm of Sidley Austin, LLP. Jory Hoffman is an attorney at the firm of Jenner & Block, LLP. The views we express here are solely our own and are not intended to be legal advice.
Monday, June 19, 2017
Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban. There is also a case in the Ninth Circuit challenging the ban. In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions.
Should the Court grant certiorari in these cases? My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.” Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore. Professor Blackman argues:
The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.
Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.”
While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law. Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore). I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore. Perhaps even a non-speedy decision would suffer the same fate. At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C. I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months. Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.
Friday, September 30, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Upcoming SCOTUS Term
SCOTUS kicks off its new term on the first Monday in October. As a result, the week before usually results in quite a bit of chatter, speculation, and discussion about the coming term and what can be expected. Here are a few tidbits in that regard:
SCOTUS Order List:
On Thursday, SCOTUS released an Order List adding eight cases to its new term, to start next week. SCOTUSblog provided a good / quick writeup about the list and a little preview of each case.
SCOTUS 2016 Term: By the Numbers
Bloomberg broke down the upcoming term "by the numbers" -- including how many cases had been docketed at the beginning of the week (out of the 75 or so likely to make up the full docket for the year), the number being heard on direct appeal vs. discretionary grants of cert, original jurisdiction, etc. The article also breaks down civil vs. Criminal cases on the docket, the possibility of the 9th Circuit becoming the most reversed court for this term, etc.
5 Facts about the Supreme Court
Pew Research Center summarized five facts about how Americans view SCOTUS as this year's term looms on the horizon. Americans' opinions of the Court hit a 30-year low last year, but have rebounded; there is a significant partisan gap in views of the Court; those partisan views include sharp divisions about how the Court should interpret the Constitution; voters closer to the conservative end of the Republican spectrum or the liberal end of the Democratic spectrum (as opposed to moderates) view court appointments as more important to their vote in the upcoming presidential election; and most Americans disagree with the current Senate's decision not to hold hearings on the nomination of Merrick Garland. See the article for more in-depth explanation of these five points.
Hat Tip: Robert Barnes (@scotusreporter)
How Clinton's or Trump's Nominees Could Affect the Balance of the Supreme Court
Adam Liptak and Alicia Parlapiano had an article in the NY Times that provided an interactive guide and links to a new study prepared by Lee Epstein of Washington University in St. Louis, Andrew D. Martin of the University of Michigan, and Kevin Quinn of the University of California-Berkeley, discussing predictions about each candidate's potential nominees.
Hat Tip: Howard Bashman (@howappealing)
This week's edition of #TwitterTuesdays here at the Appellate Advocacy Blog focused on Supreme Court related Twitter accounts to keep you informed about all thing SCOTUS.
Judge Clears Path for PACER Overcharge Suit
An article on Law.com this week highlighted that a U.S. Court of Federal Claims judge has denied the government's request to dismiss a class action suit alleging that a computer glitch caused the Public Access to Court Electronic Records (PACER) system to erroneously overcharge users for accessing and viewing federal court docket information. The basis for the government's claim was an assertion that the plaintiffs in the suit were required to exhaust administrative remedies before pursuing the action in court; the judge disagreed. The underlying action is based on "claims for breach of contract, breach of an implied covenant of good faith and fair dealing, and illegal exaction."
Friday, September 23, 2016
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Will the Supreme Court's Vacancy Issues Ever Become an Election Issue?
Chris Geidner had an article on BuzzFeed News this week asking the question. The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress's decision not to consider and vote on President Obama's nominee to fill the vacancy would became a real issue in this year's Presidential election. Hillary Clinton was asked a question about it; a member of Donald Trump's campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee's subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court's new term opening in October, as well as upcoming debates.
Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about "Duty" and the Constitution, discussing the debate over whether the Constitution imposes a "duty" on Congress to consider and vote on a nominee to fill a vacant seat on the Court. The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it's acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself.
Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, "The Future of the Supreme Court, Regardless of Who Wins the Election." In the piece, he makes the case that although "it is tempting for those of us who follow the work of the high Court to play a waiting game" and acknowledges that "with respect to some important issues, uncertainty . . . warrants caution" he also argues that "Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect." He argues that there are "vast swaths of our public life about which the Court has almost nothing to say" and that "[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus." While acknowledging that "who appoints the next several justices to the Supreme Court is [not] an unimportant question" he argues that we should not think "that everything is up for grabs" because, at the end of the day, "the Court still decides many more cases unanimously than by a single vote" and also points out that history should tell us that "[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are," their ultimate voting habits with the Court are often unexpected.
Dorf on Twitter: https://twitter.com/dorfonlaw
Oral Argument Preparation Thoughts
Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips. David Feder (@davidjfeder) had previously posted an image showing the Solicitor General's process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation.
Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944
David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208
How Many Issues to Raise on Appeal
Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal. In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising "every argument deemed to have real potential to be found meritorious" and capable of passing the "'red face test' (would you blush raising the argument during questioning at oral argument?)"
Tuesday, April 14, 2015
As Michael Wein of the Maryland Appellate Blog reports in some detail, the Maryland Rules Committee has responded to increased media publication of its "unreported decisions" by proposing to: 1) have the court publish the opinions itself and 2) deny the opinions not only precedential authority but also persuasive authority. Further, any attempt to cite an unreported decision may be met with a sanction of striking an entire brief or filing. The rule, as written, would apply also to other jurisdictions' decisions, leading Michael Wein to incisively ask, "So a case can be citable as full precedential or persuasive authority in another state or federal court, yet, when it hits the Maryland border, it suddenly ceases to exist?"
The rule would put Maryland rules at odds with the federal Fourth Circuit practice, which not only permits citation to its unpublished opinions but acknowledges that a such an opinion might have precedential value. The rule would also put Maryland at odds with the trend in state and federal courts toward greater publication, citation, and acceptance of the precedential value of unpublished opinions.
Enacting or maintaining a citation ban that attempts to deny even persuasive value of an appellate opinion ignores the shared experience and reasoning that led to Federal Rule of Appellate Procedure 32.1, which prospectively permits citation to all opinions, however designated, in the federal circuits. When attorneys in your state are telling you that they want to read these opinions to the extent that someone seeks them out and bears the costs of publication, it should be a signal that these opinions do have value for predicting the outcomes of future litigation and the reasoning that was once persuasive on the court will likely be so again. Unless it thinks members of the Maryland Bar are seeking out these opinions to supplement their leisure reading, the Maryland Rules Committee should recognize that no matter how the court labels them, appellate opinions have have a predictive and persuasive value.
Thursday, March 19, 2015
The federal appellate courts are currently considering a change to Federal Rule of Appellate Procedure 32(a)(7)(B) that would reduce the word-limit of principal appellate briefs from 14,000 to 12,500. Law blogs, especially those of an appellate bent, have reported on this as comments rolled in over the last several weeks. This blog is far behind on mentioning it, and even now, I don't have a strong opinion on the proposal. But it seemed worth mentioning that the issue has reached the general public in the form of a Wall Street Journal article.
Oddly, what stood out to me in this article was this bit:
Michael Gans, clerk of the Eighth U.S. Circuit Court of Appeals in St. Louis, who oversaw the word-count study, says the process couldn’t have been more painstaking. It was carried out by a high-school graduate who interned at his office and spent a recent summer in a cubicle counting every single word of 200 printed-out briefs that served as the sample. “I felt sorry for her, but that’s what she did all summer,” Mr. Gans said. “She still wants to go to law school.”
Perhaps optical character recognition software could have been used?
hat tip to reader: Professor Jennifer Romig
Tuesday, February 3, 2015
Just a real quick tip that in yesterday's NY Times online, Adam Liptak penned a piece about the practice of the federal courts issuing unpublished decisions and what their effect is. In the piece, Liptak quotes the Appellate Advocacy Blog's own David Cleveland on the subject, a subject David has written extensively about. The piece touches on the recent Supreme Court opinion that David wrote about last week.
The link for Liptak's article: http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html?_r=0
Thursday, January 29, 2015
Tony Mauro has this article in The National Law Journal reporting on Justice Thomas' rebuke of the Fourth Circuit over the issuance of a lengthy unpublished opinion on an unsettled issue of law. Justice Scalia joined Thomas' dissent from denial of certiorari, finding the unpublished nature of the Fourth Circuit's decision a "disturbing aspect." Thomas explains:
The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published....It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.
Thomas noted that the Fourth Circuit opinion met at least three of the five possible causes for publication, any of which should have sufficed. The Fourth Circuit’s Local Rule 36(a) provides for publication of any opinion that establishes a rule of law in the Circuit, creates a conflict with another circuit, or is of continuing public interest. Finding that it met all of these, the two Justices express concern that it wasn't published.
The Justices' concern is well-placed but ineffectively expressed. Members of the Court occasionally take a swipe at the unpublished opinion practice or a single instance of it, usually through dissents from denial of cert or similar writings, or through off-the-bench comments. They have done so for the last forty years, chiding individual circuits or questioning the system itself. This is clearly not having any effect on the circuit's practices, though. The number of unpublished opinions remains high, and the percentage of circuit cases resolved this way remains in the mid-eighty percent range. Many of these cases meet the circuits' standards for publication but are not published. Many involve dissents, lengthy explanations or novel applications of the law, or other indicia of being a useful addition to the body of law. And that doesn't even address the notion that every decision, however similar to prior cases, adds something valuable to the law by showing application to slight variations of fact, continued adherence to the doctrine, or simply the "weight of authority."
Individual Justices have expressed dissatisfaction with the system and individual instances of it. , and they should be commended for spotting the problem and speaking out against its harm to appellate justice. But rather than having Justices individually take sporadic shots at the practice, the Court should actually examine it directly, either through one of the cert petitions on the issue or through its rule-making authority.
Monday, January 19, 2015
Judicial transparency seems to be a popular issue of late, and I thought I'd pass along some recent news items on the issue.
Public.Resource.Org has a new memorandum regarding the PACER system. Drafted as a "Memorandum of Law" in "The United States Court of Appeals for Public Opinion," the document is a cheeky, well-written explanation of the access problems with the PACER system. The memorandum notes the outdated and rudimentary technical interface, fee and access barriers, and "the almost universal condemnation of PACER from the outside world." It suggests a "national strategy of litigation, supplication, and agitation." The last of these proposes a May 1 day of PACER protest, including various means to bring public dissatisfaction with PACER to the federal courts' attention.
Second, Eric Segall has a post on Dorf on Law examining the U.S. Supreme Court's the Court’s "complete lack of transparency across the range of its official duties." Leading with the example of the court's direct communication with the public timed for 6 p.m. New Year's Eve, the post also examines the courts lack of advance notice of when its decisions in cases will be published, the lack of televised coverage, and other limitations on the Court's transparency.
Third, William Baude has a new piece up on SSRN, Foreword: The Supreme Court's Shadow Docket, which examines "the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity." Ultimately, after review, Baude concludes, "if there is a problem at the Supreme Court, it may be the opposite of the usual narrative. It is on technical procedural and administrative questions when the spotlight is off that the Court’s decisions seem to deviate from its otherwise high standards of transparency and legal craft." This seems consistent with what Circuit judges and federal court scholars have said for years about unpublished opinions.
hat tip on that last item to the Legal Theory Blog.