Appellate Advocacy Blog

The Journal of Appellate Practice and Process is a must-read for appellate advocates and judges. The latest issue is no exception. It begins with an article by Professor Michael J. Hasday titled Accuracy and the Robot Judge. This article explores whether it can be shown that robot judges are more accurate than human judges. The next article, Judging Class Certification as a Matter of Law, by Attorney Brian Sutherland suggests that courts should review class certification decisions as questions of law rather than as matters of discretion. In Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System, Jarrett B. Perlow, the Circuit Executive and Clerk of Courts for the Federal Circuit, shares data on federal court performance and quality measures. Professor Colleen Garrity Settineri's article In Conclusion, . . . " Are We Missing an Opportunity to Persuade? shares the first taxonomy of possibilities for the conclusion section of a brief. The issue concludes with two book reviews. The first, The Case for a Casebook on Legal Writing: A Review of The Case for Effective Legal Writing, written by Justice Gerald Lebovits, reviews the first casebook on legal writing, The Case for Effective Legal Writing, by Professors Diana Simon and Mark Cooney. And Professor Sylvia J. Lett gives us Book Review: Reading the Constitution: Why I Chose Pragmatism, Not Textualism, a review of Justice Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism.

April 7, 2025 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Books, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 9, 2025

It Takes Four Votes, But Count to Five

Just as rubbernecking at the scene of a car crash is difficult to ignore, appellate advocates find it difficult to ignore the path from the trial courts to the Supreme Court for the various challenges to the new administration’s claims of executive authority that go well beyond the unitary executive theory. Some of it will unquestionably be held illegal or unconstitutional; some of it upheld. Friends will ask what the courts are doing, or what they might rule. Consider this an orientation on one set of cases and why casual observers might not see the full picture of the courts’ slow and tentative approach to what is unfolding.

For its unusual path to the Supreme Court and likely return, I want to focus on two separate cases that became one and challenged the administration’s freeze on foreign aid. Federal District Court Judge Amir Ali issued a temporary restraining order very quickly, as those types of injunctions usually occur. The plaintiffs soon returned to court asking for an enforcement order, claiming that the government had not complied with the order by releasing any money. The order was issued, and the administration was required to file a status report about its compliance with the order.

The government appealed to the DC Circuit, which turned the appeal down because it has no jurisdiction to hear an appeal from a TRO and that the requirements for seeking a writ of mandamus had not been met. The government petitioned Chief Justice Roberts, as the circuit judge, for a stay pending appeal and an administrative stay of the impending deadline set by Judge Ali’s order. The chief justice granted the administrative stay while the full Court considered further action.

Meanwhile, the government filed its status report with the district court, asserting that it had conducted a careful review of the thousands of State Department and USAID grants, contracts, and cooperative agreements in the course of a couple of days and found that all were subject to immediate termination. In other words, compliance with the TRO was not necessary. The plaintiffs returned to court asserting the report demonstrated the administration’s defiance of the court’s order requiring the restoration of foreign aid. Judge Ali issued a limited order requiring that, within 48 hours, the government pay all invoices and letters of credit drawdowns for work already completed before the TRO was issued and otherwise take all necessary actions to ensure “prompt payment of appropriate foreign-assistance funds going forward” without a deadline.

The Supreme Court then acted, issuing a 5-4 per curiam decision that treated the government’s application as too late given that the 48-hour deadline for paying already obligated funds had passed, but nonetheless ordering the district court to clarify the government’s obligations to comply with the TRO, taking the feasibility of mustering the funds into account. Justice Alito authored a comparatively lengthy dissent, characterizing the order upheld by the majority as a $2 billion burden on taxpayers “not because the law requires it, but simply because a District Judge so ordered.” Of course, the district court emphasized that the order was compelled by congressional spending mandates and contractual obligations that were legally binding so it hard to reconcile Justice Alito’s complaint about judicial overreach on behalf of four justices with what had occurred.

What makes the action by the Supreme Court even more interesting than what each side said is the likelihood that the case will return for a merits review. Four justices dissented. The Court grants certiorari upon the vote of four justices. The number of dissenting justices seems to guarantee that the merits will be decided by the full Court. Justice Brennan, however, used to say that, while four justices can vote to take a case, you should not supply the fourth vote unless you can court to five. That means that the four dissenters who reached the merits will want to know that their vote to grant certiorari will not be in vain and that there is a vote to be picked up from the majority. A petition for certiorari is likely coming, with a request for a stay pending its disposition. What the Court does with it will test that theory – and one other. There is a tradition at the Court to grant a stay when a petition is granted, so that a fifth justice, even if not supporting certiorari, usually joins the four as a courtesy to hold the “status quo” while the case receives review.

It pays to understand the Court’s traditions and unwritten rules. When some of this occurs in the near future, those who take what the Court is doing at face value may misinterpret those actions as signaling a change in positions from someone in the majority. Those who understand will know whether the Court is following its own norms – or departed from them. It will be too early to predict an outcome.

March 9, 2025 in Appellate Practice, Appellate Procedure, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, March 5, 2025

Alphabet Soup: Fine for Lunch but not for your Briefs

Lawyers love alphabet soup. We use abbreviations (which include initialisms and acronyms)[1] liberally. Take this excerpt as an example:

Facing the uncertainty of collecting from the Lewicki-Swiech Defendants, D&K turned to LL and KFTR, KBP’s prior counsel in this case. In February 2014, D&K’s counsel, now also representing the Polish bankruptcy trustee controlling KBP since April 2013 (See SA93-94 ¶10), asked LL for voluntary production of its documents relating to its representation of KBP in this lawsuit in 2011-12. LL complied. (See Dkt. 765 at 5.) KBP later also asked for and obtained documents from Dienner and KFTR, who had preceded LL as counsel for KBP.[2]

Lawyers in another case used the initialisms “‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’” to refer to “‘spent nuclear fuel,’ ‘high-level radioactive waste,’ the ‘Nuclear Waste Fund,’ the ‘Nuclear Waste Policy Act,’ and the ‘Blue Ribbon Commission.’”[3] Well, those are “clear as mud,” as my dad would’ve said.

But I’m sure those abbreviations were clear to the people using them. That’s the problem. The lawyers and parties to a case live with and use abbreviations to talk about the case, perhaps for years.[4] Those insiders readily understand the abbreviations. But you’re not writing your brief for an insider; you’re writing it for an outsider (judge) who reads thousands of pages of briefs each year. Using uncommon abbreviations makes the judge’s job more difficult and distracts from your argument. As one court noted in decrying the parties’ use of abbreviations, “The proliferation of these acronyms and abbreviations created a confusing alphabet soup which actively took the reader out of OSCO’s[5] arguments (at the expense of remembering what everything meant), and necessarily prolonged the Court’s review of the subject motions.”[6]

Some courts expressly discourage the use of uncommon abbreviations.[7] The Supreme Court of Ohio Writing Manua l tells writers to “Avoid using acronyms and abbreviations that are not already widely used; instead, shorten the name of the entity.”[8] It then suggests, “after identifying the Greater Cincinnati and Northern Kentucky Car Dealers Association, provide a parenthetical such as (‘the car dealers’) rather than create the abbreviation ‘GCNKCDA.’”[9] Lawyers (and law professors) need to be aware of and comply with such suggestions. Failing to do so may result in a judge writing something like this:

Petitioner's brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.[10]

At least two circuit courts of appeals now require parties to include a glossary that defines uncommon abbreviations. The Circuit Rules for the United States Court of Appeals for the D.C. Circuit has this requirement, “All briefs containing abbreviations, including acronyms, must provide a ‘Glossary’ defining each such abbreviation on a page immediately following the table of authorities. Abbreviations that are part of common usage need not be defined.”[11] But the very need to include a glossary suggests there is a problem with your writing—a problem that makes the judge’s job more difficult. Do you really want to write a brief that requires the judge to constantly flip back to a glossary to understand what you’re talking about? As Judge Silberman noted, “Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means.”[12]

A final point: a judge may view the overuse of abbreviations as a signal that the writer is unskilled.[13] One judge referring to the overuse of abbreviations, noted, “Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.”[14]

So, save the alphabet soup for your lunch, not your brief.

[1] While all acronyms and initialisms are abbreviations, not all abbreviations are initialisms or acronyms. See, Abbreviations, Bryan A. Garner, Modern English Usage, 2 (5th ed. 2022).

[2] Locke Lord Appellees’ Brief at 4, Domanus v. Locke Lord, LLP, 847 F.3d 469 (7th Cir. 2017) (No. 15-3647, ECF No. 31, 2016 WL 1072974.

[3] Nat’l Ass’n of Regul. Util. Comm’rs v. U.S. Dept. of Energy, 680 F.3d 819, 820, n.1 (D.C. Cir. 2012).

[4] Fed. Ct. App. Manual § 32:8 (7th ed.); Garner, supra note 2 at 4 (stating “Abbreviations are often conveniences for writers but inconveniences for readers.”)

[5] Goodyear Tire & Rubber Co. v. Conagra Foods, Inc., No. 2:20-cv-6347, 2023 WL 5162655, *5, n.4. OSCO refers to OSCO Industries, Inc., id. at *1, which started as the Ohio Stove Company. https://oscoind.com/about-us/ (last visited March 4, 2025).

[6] Id. at *5, n.4.

[7] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024); Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, 153 (2020 ed.) (“Relatedly, the use of acronyms that are not widely known is discouraged.”)

[8] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024).

[9] Id. (I take issue with the need to include the parenthetical if there is only one set of car dealers involved in the case. I’d just refer to the entity as the car dealers after identifying the entity by its full name the first time. But perhaps that’s a topic for another blog post.)

[10] Delaware Riverkeepers Network v. F.E.R.C., 753 F.3d 1304, 1321 (D.C. Cir. 2014) (Silberman, J. concurring).

[11] D.C. Cir. Rule 28(C)(3); 10th Cir. R. 28.2(C)(4).

[12] Delaware Riverkeepers Network, 753 F.3d at 1321 (Silberman, J. concurring).

[13] Id.

[14] Id.

March 5, 2025 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (3)

Monday, February 17, 2025

2025 Corbin Appellate Symposium

The 2025 Corbin Appellate Symposium will be held on March 13 & 14, 2025, in Little Rock, AR. The symposium will include presentations on preparing for oral argument, preserving the record, and writing, The symposium will also include panels on state and federal appeals. The symposium features distinguished members of the bench, bar, and academy. You can find more information and register here: Corbin Appellate Symposium.

February 17, 2025 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Monday, January 6, 2025

As-Applied Challenges to the Felon-in-Possession Law: Range III

This is a guest post by Professor Dru Stevenson.

The en banc Third Circuit recently re-decided Range v. Attorney General of the United States (Range III), a closely-watched as-applied Second Amendment challenge to the federal ban on felons possessing firearms in 18 U.S.C. § 922(g)(1). The case came back to the Third Circuit on remand from the Supreme Court, to be reconsidered in light of the Court’s decision in United States v. Rahimi. While no circuits have held that the law is facially unconstitutional, there is now a circuit split about the availability of as-applied challenges to the statute. For example, just a week before, the Fourth Circuit rejected as-applied challenges to § 922(g)(1) in United States v. Hunt.

Mr. Range is a fairly sympathetic party in the area of Second Amendment litigation. In 1995, he pleaded guilty to one count of making a false statement on an application for food stamp benefits (his wife actually completed the application and penned the false statement, but Mr. Range co-signed the application). Range was sentenced to three years’ probation (no jail time), restitution, and a fine. The statute, however, allowed up to five years imprisonment, so the federal statute applied. Years later, after a couple failed attempts to purchase a firearm (he couldn’t pass a background check), he learned that his misdemeanor conviction for welfare fraud prevented him from doing so. He sued for a declaratory judgment that § 922(g)(1) was unconstitutional as applied to him, and he asked the court to enjoin enforcement of the law if he bought a hunting rifle and a shotgun for home defense.

The district court ruled against him in 2021, and while his appeal was pending the next year, the Supreme Court upended Second Amendment jurisprudence with New York State Rifle & Pistol Ass'n, Inc. v. Bruen. A panel of the Third Circuit applied Bruen and rejected his challenge, but a rehearing en banc resulted in a reversal. While the case was pending at the Supreme Court in 2024, the Court decided Rahimi, which recalibrated the Bruen methodology somewhat, and then granted certiorari in Range. The Court then vacated and remanded the case to the Third Circuit, which brings us to Range III, which mostly reiterates what the Third Circuit said the last time. Each time the Third Circuit has considered Range, it has provided a lengthy discussion of Founding-era firearms laws, with yet more judicial historiography in long concurring and dissenting opinions. The latest round has four concurrences and a dissent.

One feature of the case that sets it apart from most other challenges to § 922(g)(1) is that Mr. Range was not prosecuted for unlawful possession – this is not an appeal of a conviction, or a motion to have charges dismissed. He sought a declaratory judgment that the law was unconstitutional as applied to him.

In a 2022 law review article, I defended the felon-in-possession law. As the Supreme Court noted in Rahimi, our country has a long historical tradition of legislatures and courts disarming individuals and groups considered a threat to public safety or national security. While Mr. Range does not appear to pose a threat to his community (no history of violent crime), any attempt to distinguish “dangerous” from “non-dangerous” felons or felonies will inevitably plunge courts into the same quagmire they now have with the Armed Career Criminal Act (ACCA), in part because so many penal statutes include provisions for both violent and nonviolent variations on the underlying crime. Thus, I mostly agree with Judge Shwartz’s dissent in the Range case, which was joined by Judge Restrepo, and I disagree with the majority opinion. The basic gist of the dissent is that once we reject facial challenges to § 922(g)(1), which the Third Circuit has already done, it is up to Congress to balance the policy tradeoff and decide which felonies should disqualify a person from possessing firearms, even if the answer is “all felonies.”

That said, I also sympathize with the (lengthy) concurrence by Judge Krause, which takes a moderate approach, one that Congress arguably intended when it enacted the law in the first place. On the one hand, Judge Krause explains, the majority simply ignored many historical examples of the government disarming people for committing crimes or seeming to pose a serious threat to public safety. On the other hand, many, if not most, of these examples included a path for an individual to have their rights restored under certain circumstances. Thus, he concludes, courts should not determine whether the law was always (retrospectively) unconstitutional as applied to certain individuals or types of felons, but there should be a way for felons to petition a court for restoration of their firearm rights, and if they provide sufficient evidence that they pose no threat of violence to anyone, a court should be able to grant the petition.

When Congress enacted the gun ban for felons, it included a way for felons to petition for restoration of their gun rights (the statutory phrase is “relief from disabilities”), in 18 U.S.C. § 925(c). Petitions were to go to the Attorney General, which in practice meant ATF, with judicial review for denials. The statute provides:

…the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest.

Moreover, a reviewing court “may in its discretion admit additional evidence where failure to do so would result in a miscarriage of justice.”

From the standpoint of traditional doctrines of Constitutional avoidance, this statutory provision seems like the easy answer. Unfortunately, after some high-profile cases of felons committing crimes after having their firearms rights restored in the 1980’s, Congress stopped this process by defunding it, though the statute remains intact. As ATF explains on their website,

Although federal law provides a means for the relief of firearms disabilities, ATF’s annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals. As long as this provision is included in current ATF appropriations, ATF cannot act upon applications for relief from federal firearms disabilities submitted by individuals.

Mr. Range would presumably be a good candidate for relief under § 925(c) – he is probably the very type of person Congress had in mind when they enacted this. Congress could fix the problem that was before the (deeply divided) Third Circuit, and that has caused a circuit split, by merely omitting this budget rider in the future. Even though gun rights have long been a partisan issue, even the party that champions gun rights has passed on every opportunity so far to revive this law that allows for restoration of gun rights for nondangerous felons.

My proposal for appellate courts like the Third Circuit (and the Fifth and Sixth Circuits) that choose to recognize as-applied Second Amendment challenges to the felon ban is that they try to approximate the system set forth in § 925(c) – to consider whether a petitioner’s “circumstances of [the original felony conviction], and the applicant’s the record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety.” In other words, courts should deem Congress’ backdoor blockage of the petitions for relief as a constructive denial of the petitions, and proceed with judicial review of the case, just as the courts would have done with denials prior to 1992. Of course, the review would necessarily be de novo, rather than whatever standard of review courts may have used when ATF actually processed the petitions and produced a record of decision in each case.

This approach would avoid the perilous and felony-by-felony road that the Third Circuit is heading down at the moment, and would allow the circuits to coalesce around a reasonable approach, the approach Congress originally intended. The evidentiary burden would be on the felon seeking relief – which the majority of the Third Circuit has not embraced, but Judge Krause insisted was necessary in his concurrence, and which the Sixth Circuit has adopted. Proceeding with a constructive § 925(c) approach would also avoid the disruptions to the background check system that Judge Krause warns about, because the individual’s name would be removed from the FBI’s NICS database. In contrast, approaching these cases by whether the underlying felony was “dangerous” or “violent” throws the entire background check system into uncertainty – if whole categories of individuals should never have been there (the majority’s reasoning), how is a local gun dealer supposed to know whether to consummate a sale? Or the FBI to know whether any given individual’s name should be removed (the records sent to the NICS database do not include all the details about the nature of the crime committed). In addition, the majority’s approach in Range is functionally a judicial amendment or rewriting of the statute – the statute stays, but the court is gradually creating a list of felonies that are unwritten exceptions. Finally, it is also worth noting that some individuals with felony convictions for nonviolent crimes may also have a (sometimes recent) history of violence, even though their violent acts may yet have resulted in felony convictions for a variety of reasons (charged as misdemeanors instead, prosecutors decided it was a low-priority case or had evidentiary problems, etc.).

I have a second, more modest proposal about “as applied” Second Amendment challenges in general. In Bruen and Rahimi, the Court has carved out some categories of exceptions to the Second Amendment, although it has left the parameters of these exceptions mostly undefined and uncertain. They have said that some types of dangerous individuals can be disqualified, some types of unusually dangerous and uncommon weapons can be banned, some regulations of firearms commerce can exist, and some sensitive places can be gun-free zones. Lower courts are now wrestling with undefined categories, and legal academic commentators are still debating where the lines should be. As-applied challenges are inherently individualized – a court decides whether it would be unconstitutional for the law to apply to this person. Due to the highly particularized nature of these decisions, it would be appropriate for a court to rule on more than one of these categories for the as-applied constitutionality of the law. For example, the Third Circuit mentions that Mr. Range claims he only wants a rifle for hunting and a shotgun for home defense, which does not seem like a threat to the community. Would the court have felt different if Mr. Range announced he planned to amass a huge personal arsenal, enough to outfit an entire local militia, and that he planned to acquire several used fully automatic machine guns, albeit through all the proper NFA registration and licensing channels? What about large capacity magazines, which may or may not be banned? (SCOTUS has yet to decide this question.) The way the court drafted its opinion, there is nothing to prevent Mr. Range from doing this, or from stockpiling military-style weapons while secretly dreaming of starting a civil war. I doubt that Mr. Range will do that, but when this case is applied to the next felon claiming he is not dangerous enough to be banned from gun possession, I am not so sure.

Given the individualized adjudication involved in these “as applied” challenges, including future decisions that will apply Range III as binding precedent, it would have been appropriate for the court to issue a decision tailored to Mr. Range’s situation rather than a general rule that firearms ineligibility for felons is unconstitutional if they are not clearly “dangerous.” The court should have said, “§ 922(g)(1) does not apply to Mr. Range for purposes of owning a hunting rifle and a shotgun for home defense, and the necessary ammunition for these weapons,” and had left undecided questions like whether Mr. Range is eligible to operate a gun dealership, or have guns and accessories that are banned in some states, or can carry his firearms in a gun-free zone whose status is currently being litigated. If the challenge is “as applied to him,” then the decision should be narrowly tailored to him, and should steer clear of these unsettled areas of Second Amendment law.

January 6, 2025 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (1)

Sunday, December 8, 2024

A New Rule on Amicus Briefs?

The Advisory Committee on Appellate Rules has published for public comment amendments to Federal Rule of Appellate Procedure 29, which covers amicus briefs. One amendment seeks to impose disclosure requirements so that entities filing as amici can clearly be identified. It would require all amicus briefs to include “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court.” To reveal whether an amicus was created for purposes of this particular case, the proposed rule also requires an amicus that has existed for less than 12 months to state the date the amicus was created.

These requirements are, in part, designed to prevent parties from extending their briefs through proxies filing as amici. The proponents also claim it will inform the court about how independent the amicus really is. Instead, leave of the court would always be required. The proposed rule would require that the amicus brief bring to the court’s attention “relevant matter not already mentioned by the parties. Briefs that do not accomplish that or are “redundant with another amicus brief” are disfavored. Nothing in the proposal indicates how amici might know what another amicus will file.

The Supreme Court has gone in a very different direction, welcoming all amicus briefs and no longer requiring either leave or consent. The advisory committee chose not to follow suit because the Court’s booklet printing requirement acts as a deterrent to overwhelming the Court, it claims, even though the growth in filing Supreme Court amicus briefs continues.

The proposals were published August 15 and have a comment period that runs through February 17. Comments may be submitted electronically. In addition, the advisory committee will hold two hearings on the proposals next year before the comment period ends. Those interested in appellate advocacy may want to view the proposals and their explanations, which are available at https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf.

December 8, 2024 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts | Permalink | Comments (3)

Sunday, November 24, 2024

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

November 24, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 17, 2024

How to Persuade Judges When a Constitutional Provision is Ambiguous

By Adam Lamparello

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

1. Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

2. Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

3. Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

November 17, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Sunday, October 6, 2024

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17] Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec. Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

October 6, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 2, 2024

It's not just Generative AI, it's Stenographers too

Instances of lawyers’ use (or rather misuse) of generative artificial intelligence tools such as Chat-GPT, have resulted in sanctions for violating rules of professional conduct or court rules. These cases generate much publicity—and no doubt embarrassment—for the lawyers involved. But there is nothing new under the sun (or in the practice of law). These cases simply represent recent and high-profile examples of lawyers being sanctioned or castigated for the way that they used the latest technology in their written advocacy.

In a 1902 case, a court noted that the latest technological advances had contributed to the lawyer’s violation of a court rule governing the contents of an appellate brief.[1] There, the court’s rule required each party to “‘briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found.’”[2] The appellant violated the court’s rule by filing a brief that covered 117 printed pages and included lengthy quotations.[3] Lamenting the lawyer’s failure to comply with the court’s rule, the court said,

When every lawyer wrote his points with a pen, there was no occasion for complaint in this regard; but, since the use of stenographers has become general, the evil has grown until it is so serious that repression is necessary. We feel assured that these suggestions will be sufficient, and that we shall not be compelled to make a hard and fast rule upon the subject, and to provide for its violation by an appropriate penalty. We have been led to make these observations, not simply by this case, but by many, of which this is an example.[4]

[1] Stevens v. O'Neill, 169 N.Y. 375 (1902).

[2] Id. at 376.

[3] Id. at 376-77.

[4] Id. at 377.

October 2, 2024 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, September 28, 2024

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

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

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

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

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

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

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

September 28, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, September 22, 2024

Different Strokes for Different Courts

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

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

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

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

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

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

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

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

September 22, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Books, Federal Appeals Courts, Oral Argument, Travel | Permalink | Comments (0)

Saturday, June 29, 2024

Should We Still Avoid Contractions in Formal Legal Writing?

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

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

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

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

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

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

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

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

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

June 29, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Law School, Legal Writing | Permalink | Comments (1)

Saturday, April 27, 2024

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

By Adam Lamparello

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

1. Have a strong introduction.

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

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

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

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

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

3. Speak conversationally and confidently.

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

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

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

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

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

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

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

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

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

Consider the following example:

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

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

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

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

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

***

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

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

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

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

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

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

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

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

7. Be reasonable.

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

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

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

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

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

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

***

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

April 27, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Saturday, February 17, 2024

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

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

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

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

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

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

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

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!

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

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

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

Holidays and Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, December 3, 2023

The New Rules for AI-Based Research

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

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

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

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

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

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

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

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

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

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

December 3, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Tuesday, November 14, 2023

Stigmatizing AI Usage

By Jayne T. Woods

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

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

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

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

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

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

(4) protecting the writer from plagiarizing;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

November 14, 2023 in Appellate Practice, Appellate Procedure, Legal Ethics, Legal Writing | Permalink | Comments (0)

Tuesday, October 3, 2023

Disclosing the Use of AI