Thursday, November 25, 2021
To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:
- Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
- Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
- The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
- American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
- Dashes, colons, and semi-colons. They are way undervalued and underutilized.
- Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
- The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
- The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
- The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
- Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
- People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
- Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).
Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!
Saturday, November 20, 2021
Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.” Fed. R. App. P. 28(a)(7). As a judicial clerk, I saw brief after brief where the authors ignored this rule. Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.
Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case. The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case. Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument. Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read.
Recently, I read a fantastic Summary of Argument which really proves these points. In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs. As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health Org. See https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.
You can find the briefs in Dobbs at SCOTUSblog here: https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/. But how do you choose which briefs to read? I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs. In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me. One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.
The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning: “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.” See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf. Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.” Id. at 2. Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.” Id. at 2-3.
Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue. The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.
In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader. The next time you draft a Summary of Argument, you might want to follow this wonderful example.
November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Saturday, October 30, 2021
Like a bad dream (or a toxic ex-partner), abortion has made yet another unwelcome visit to the United States Supreme Court, thanks to the State of Texas.
Texas is up to its old tricks again in its never-ending quest to find some way – any way – to disregard Roe v. Wade and Planned Parenthood v. Casey, and eviscerate abortion access in the Lone Star State. By way of background, in 2013, Texas passed a law requiring abortion providers to have hospital admitting privileges and claimed that the law’s purpose was to protect women’s health. But the stated purpose was as meritless as it was disingenuous: complications from abortions are quite rare and less frequent than, for example, complications resulting from tonsillectomies and tooth extractions – neither of which were subject to such a requirement. The law was challenged and, in Whole Women’s Health v. Hellerstedt, the Court, by a vote of 5-4, rightfully invalidated the law and implicitly recognized that its purpose was, in the words of former Governor Rick Perry, “to make abortion, at any stage, a thing of the past.”
Sadly, Texas didn’t learn its lesson.
The legislature recently passed – and Governor Gregory Abbott signed – a “fetal heartbeat” law (“SB 2”) that prohibits abortions after six weeks. But there’s more: ostensibly aware that the law unquestionably violates Roe and Planned Parenthood, which held that women have the right to terminate a pregancy before viability (approximately twenty-four weeks), Texas designed a ridiculous scheme to evade review by the federal courts. Specifically, SB 2 authorizes private citizens, not state officials, to enforce the law by giving all citizens the right to sue abortion providers who perform abortions after six weeks. And to incentivize such lawsuits, Texas is offering private citizens at least $10,000 if they succeed in a lawsuit against an abortion provider. Put simply, SB 2 creates private bounty hunters.
Not surprisingly, SB 2’s constitutionality was immediately challenged. Initially, the Court refused to grant injunctive relief, holding that, although the law raised serious constitutional questions, it also raised “novel antecedent procedural questions," such as whether the Court had the power to issue an injunction against “state judges asked to decide a lawsuit under Texas’s law,” and whether an injunction was proper given that the named defendants lacked the power to enforce the law. As a result, the law is now in effect and abortions in Texas are, as a practical matter, a thing of the past.
So here we are again.
Like in Hellerstedt, where Texas unsuccessfully argued that a hospital admitting privileges requirement was necessary to protect women’s health – a justification the Court rightfully rejected – it now argues that it can effectively eliminate the right to abortion by adopting a private enforcement scheme that uses citizens as proverbial human shields to evade federal review and preclude injunctive relief . As in Hellerstedt, the Court should invalidate this ridiculous law, which thumbs its nose at the Court, its abortion precedent, and judicial review. The law unquestionably violates Roe and Planned Parenthood, and is an unconstitutional assault on the viability threshold. The Court should recognize the obvious.
If the Court fails to do so, it will severely, if not irreparably, undermine its institutional legitimacy. Indeed, at a time when forty percent of the public has confidence in the Court, doing the right thing – regardless of ideology – is critical.
To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Whole Woman’s Health the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is the point – and the problem.
Yet, this is precisely what the public may believe if the Court refuses to grant Petitioners relief and, instead, focuses on the “novel antecedent procedural questions," such as those mentioned above. Doing so will likely be viewed for what it is: conservative justices hiding behind Texas’s legislative shenanigans to all but outlaw abortion in Texas and, concomitantly, give states carte blanche to eviscerate any constitutional right simply by enacting a private enforcement scheme. If the Court countenances such nonsense, constitutional rights will be worth the equivalent of Monopoly money.
The Court should grant Petitioners relief. Regardless of whether one is pro-life or pro-choice, what matters is recognizing this charade for what it is: a sophomoric and transparent attempt to disregard Roe and eliminate abortion.
Ultimately, the mess that is abortion jurisprudence reflects three problems with the Court's decisions in this and other areas.
- Living Constitutionalism. The Court is in this mess primarily because Roe v. Wade was a constitutionally indefensible decision. Decided less than a decade after Griswold v. Connecticut, an equally indefensible decision, the Court created a right to privacy (and abortion) out of thin air, as no reasonable interpretation of the Fourteenth Amendment’s Due Process Clause could support recognizing these rights. The backlash among states that Roe and, later, Planned Parenthood engendered, and that has thrust the abortion right into uncertainty for decades, reflects the flawed reasoning in these decisions.
- An ambiguous legal standard. In Planned Parenthood, the Court reaffirmed the central holding in Roe but created a new standard by which to assess the validity of abortion restrictions. Specifically, the Court held that laws regulating abortion cannot place an “undue burden” on a woman’s right to terminate a pregnancy. But what exactly constitutes an “undue burden"? No one knows. Adopting this vague standard created uncertainty and unpredictability regarding the right to abortion and only guaranteed that states like Texas would continually attempt to limit, if not eliminate, abortion access.
- Incrementalism. The Court, particularly under Chief Justice John Roberts, has adopted an incremental approach to deciding cases, in which the Court only decides the narrow legal issue before it, thus eschewing broad rulings or the adoption of categorical legal rules. This approach has many benefits. Sometimes, however, clear – and categorical – rules are necessary to bring clarity to the law, guide lower courts, and bring stability to the law.
The Court’s abortion jurisprudence suffers from all three flaws. As such, it should not be surprising that the right to abortion has for decades led to countless legal challenges and continued uncertainty.
Hopefully, the Court will recognize – and rectify – the problem. Its institutional legitimacy depends on it.
 579 U.S. 582 (2016).
 See id.
 Press Release, Governor Rick Perry, Tex., Governor Perry Announces Initiative to Protect Life (Dec. 11, 2012), http://perma.cc/CWN2-KLDD.
 See Brief of Professors Adam Lamparello, Charles E. MacLean, and Brian Owsley in Support of Petitioner, available at: Microsoft Word - Amicus Brief In Support of Petitioners (supremecourt.gov).
 See Whole Woman’s Health v. Jackson, 594 U.S. (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).
 Se Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (September 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
October 30, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Saturday, October 2, 2021
A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court
The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court. Three factors arguably explain the reasons underlying the public’s negative perception of the Court.
1. Chief Justice John Roberts
Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.
Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.
The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.
Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.
2. The Shadow Docket
The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.
Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences. Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).
So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.
3. The Justices’ Political Views
If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.
Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.
And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.
This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.
Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras, seeking to discover new rights that reflect the “heady days of the here and now.” That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.
Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.
Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.
Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash.
Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.
 See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, September 26, 2021
In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”
The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.
That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.
As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.
Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.
In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.
Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.
Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses, may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.
Thursday, September 23, 2021
The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.
This issue will focus on appellate issues in and around Indian Country. We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.
Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (email@example.com) by June 1, 2022. Acceptances will be emailed by August 1, 2022.
The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”
Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal. So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.
The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.
Wednesday, September 22, 2021
Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.
The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.
Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.
- Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
- Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
- A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
- A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.
Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?
Sunday, August 29, 2021
In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.
In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding. In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.” Some state courts of appeal follow the same rule. Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.
The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”
If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.
Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.” For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.
State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.” Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis. Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”
Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana, the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.
The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.
 See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).
 Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
 See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).
 See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.
 Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
 Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).
 Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).
 Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).
 United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).
 Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).
 Childers v. Childers, 74 Cal.App.2d 56, 61 (1946) (emphasis in original).
 140 S. Ct. 1390 (2020).
Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.
Tuesday, July 27, 2021
Waiting for Warrants? Chief Justice Roberts’s conflicting opinions on the speed of warrant applications in Lange and McNeely.
In his recent concurring opinion in Lange v. California, Chief Justice Roberts argued in favor of a robust version of a “hot pursuit” exception to the warrant requirement. His argument was motivated, in part, by a concern that officers would waste too much time if forced to obtain a warrant in those exigent circumstances. Interestingly, though, Roberts’s claims about the time-consuming nature of the warrant application process were contradicted by another opinion Roberts himself authored just eight years earlier in Missouri v. McNeely. The conflicting opinions are not just confusing. They generate conflicting incentives for police departments to invest in flexible and efficient procedures to approve warrants, threatening to undermine advancements that help preserve Fourth Amendment rights.
In his Lange opinion, Roberts claimed that while a suspect flees into their home, “even the quickest warrant will be far too late.” Roberts cited to an amicus brief submitted by the Los Angeles County Police Chiefs’ Association, which argued that “[a] ‘fast’ warrant application may be processed in an hour and a half if factors are favorable (e.g., it occurs during normal court hours, has strong supporting facts, receives quick responses from the magistrate or judge, etc.).” The Association suggested that even more support is needed for an arrest warrant, such as evidence of a completed investigation, and that such warrants are rarely issued quickly absent compelling reasons. In his opinion, Roberts went on to claim that “[e]ven electronic warrants may involve time-consuming formalities,” such as a written application or an in-person appearance. Thus, Roberts argued that limitations on the hot pursuit branch of exigent circumstances would allow reckless suspects to freely elude warrantless capture.
But Roberts’s views on the laboriousness of the warrant application process directly contradicted his own concurring opinion in 2013’s Missouri v. McNeely just eight years earlier. In McNeely, Roberts claimed that “police can often request warrants rather quickly these days,” including electronic warrant applications that were available in at least 30 states at the time. Roberts specifically cited Utah’s e-warrant procedures, whereby “a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes.” Similarly, officers in Kansas can email warrant requests to judges and receive responses in less than 15 minutes.
Which Chief Justice Roberts was right? In truth, both. Neither opinion presented incorrect or inaccurate information. Roberts correctly described the common plight of officers in Los Angeles, while also accurately presenting the capabilities of e-warrant systems in Utah and Kansas. But his selective approach to the data in each presented conflicting images of uniform procedures and time frames for obtaining warrant across the country. As these opinions demonstrate, such uniformity does not exist across jurisdictions.
Sweeping such disuniformity under the rug is particularly troubling. It disincentives jurisdictions from creating more efficient warrant application procedures. In McNeely, Roberts seemed to speak with approval about the evolution of e-warrants, suggesting that they may resolve many of the problems presented in emergency cases while still maintaining the neutral magisterial review of warrant applications that our Constitution typically requires. But in Lange, Roberts seemed to reward jurisdictions that have been slower to develop those kinds of warrant regimes. Roberts suggested that in such jurisdictions, perhaps obtaining a warrant to respond to a rapidly-evolving emergency is entirely unnecessary.
Why, then, would jurisdictions continue to develop those efficient methods for warrant applications? Roberts’s suggestion removes one of the primary incentives to duplicate procedures like those in Utah and Kansas. Only if court decisions look upon those programs with favor and reward those jurisdictions for their efforts will policymakers continue to build such programs. Roberts’s flip-flop is thus a dangerous one for the future of e-warrant procedures. His earlier views provide a much greater incentive for the continued development of rapid warrant procedures that can resolve many Fourth Amendment issues in modern policing.
 Lange v. California, 594 U.S. __ (2021) (slip op. at 9) (Roberts, C.J., concurring).
 Brief of Los Angeles County Police Chiefs’ Association As Amicus Curiae in Support of the Judgment Below 24-25, Lange v. California, 594 U.S. __ (2021), https://www.supremecourt.gov/DocketPDF/20/ 20-18/166350/20210114161910913_40463%20pdf%20Ito%20br.pdf.
 Id. at 25.
 Lange, slip op. at 9 (Roberts, C.J., concurring) (citing Colo Rev. State. § 16-3-303 (2020) and Mass. Gen. Laws, ch. 276, §2B (2019)).
 Missouri v. McNeely, 569 U.S. 141, 172 (2013) (Roberts, C.J., concurring).
 Id. at 172–73 (citations and quotations omitted).
 Id. at 173 (citations and quotations omitted).
Saturday, July 24, 2021
The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.
1. Make your sentences concise
Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:
The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.
This sentence is far too wordy. Instead of the above statement, simply say:
The Second Amendment protects an individual right to bear arms.
Likewise, consider this example:
The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.
Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:
The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.
That sentence is thirteen words, and it says the same thing.
Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.
2. Focus on coherence and flow
Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages. With this in mind, consider the following statement:
The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.
This paragraph is utter nonsense. It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.
3. Keep the reader’s attention
When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:
The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.
This paragraph is worse than the Friday the 13th movies. Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.
4. Eliminate filler words
Sentences should include only necessary and purposeful words. As such, eliminate words like “just,” “very,” and “really.” Consider the following example:
My settlement offer should really be considered by your client.
Your client should consider my settlement offer.
The second example eliminates the filler words. It gets to the point quickly and directly.
5. Don’t repeat words
If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:
The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.
Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.
6. Don’t suggest unintended meanings or biases
Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases. Consider the following example:
The defendant was mentally retarded and should be held incompetent to stand trial.
Yeah, that’s not good. Instead, say:
The defendant was intellectually disabled and should be held incompetent to stand trial.
Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.
7. Avoid words that convey uncertainty or equivocation
Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:
The court’s decision seems to be based on reasoning that is inconsistent with precedent.
Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:
The court’s decision is based on reasoning that is inconsistent with precedent.
The latter sentence is direct and declarative, and thus more persuasive.
8. Eliminate cliches
When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:
My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”
That sentence is terrible. Instead, say:
My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.
This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.
9. Know what your words mean
Don’t use words that you misunderstand or don’t understand. Consider this example:
The law’s affects will suppress citizens’ First Amendment rights.
Don’t make such a foolish mistake. Instead, say:
The law’s effects will suppress citizens’ First Amendment rights.
And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:
The invidious weather caused the plane crash.
The inclement weather caused the plane crash.
The first sentence would make the reader question the writer’s credibility – for good reason.
10. Lose the adverbs
Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:
The party was extremely loud.
The party was deafening.
The defendant was extraordinarily tired.
The defendant was exhausted.
The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”
11. Lose the adjectives
Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:
The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.
Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:
The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.
The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.
12. Think differently about active versus passive voice
The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.
Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?
The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.
The alleged defamatory statements, which were made by the defendant, are true.
The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.
12. Good judgment leads to good writing
Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.
Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Tuesday, June 22, 2021
When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves. But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia. Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling. Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.
The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.
Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.
Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.
No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.
 In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).
 593 U.S. __ (2021).
 494 U.S. 872 (1990).
 See Gentithes, supra note 1, at 341.
 See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Tuesday, May 18, 2021
We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.
The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).
Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.
The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.
In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.
If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).
Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.
(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)
Sunday, May 16, 2021
On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.
Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.
1. The jury deprived Chauvin of a fair trial
Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.
During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:
Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout. You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”
At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.
Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.
The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:
“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.
Mitchell answered “no” to both questions.
At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.
2. Failure to sequester the jury
Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached. Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:
Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury.
And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:
There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.
Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.
3. Failure to Change Venue
Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.
That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.
4. Insufficiency of evidence on one or more of the charges
The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.
Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.
But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.
And for the reasons stated, the conviction should be overturned.
Process matters – regardless of Chauvin’s egregious and deplorable conduct.
 Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation
 See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post
 Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY
 See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics
 Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)
Saturday, April 17, 2021
Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment
On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand. See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf. As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper. Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).
Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst. See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html. The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense. Order at 1-2. The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction. After hearing argument from counsel, Judge Fuerst denied the jury instruction request. Id. at 2.
Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.” Id.; Weiss, ABA Journal at 2. Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.” Order at 2. Baker admitted to the Board: “’I moved away from the table so it was clear I'm not participating.’" Id. Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record. When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed. Id.
In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500. Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:
- I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
- I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.
Baker immediately complied with Judge Fuerst's order and paid the $500 fine. In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases.
Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.” Order at 3. Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’” Weiss, ABA Journal at 2. “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal. But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.” Id.
Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court. Id. Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct. An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings. Order at 3.
Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed. Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs). As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did.
Saturday, February 13, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- The Supreme Court let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press.
- The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic. See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.
- The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now. The two arguments concerned funding for the border wall and the “Remain in Mexico” policy. See reports in Reuters, The Hill, and Bloomberg News.
Federal Appellate Court Opinions and News
The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.
The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance. The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.
State Appellate Court Opinions and News
- The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.
- Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”
February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)
Friday, December 18, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.
The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.
The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.
A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here.
Federal Appellate Court Opinions and News
The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police. See reports by NYU’s First Amendment Watch and CommonWealth.
The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),
The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.
Sunday, December 13, 2020
Tired of online court, school, happy hour, family holidays, and more? Me too. However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve.
Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court. As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.
Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument. You can see his blog here: Judge Pierre Bergeron's Tips. He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.” Id. These tips apply equally to in-person arguments.
Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general. See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020). As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.” Id. Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.
Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico. See id. Thus, “preparing a presentation ahead of time is still crucial.” Id. Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam. See id. I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom.
Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire. Alder recommends: “Dressing properly means wearing professional attire from head to toe, not just head to waist.” Id. “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.” Id. The key: “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said. Id.
We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges. This lesson matters even more for online arguments, where the format makes true eye contact impossible. To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal. Id.
Finally, we all need to be more attentive to virtual context clues in online arguments. “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.” Id. Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said. Id. As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’” Id. And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question.
In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world. I know many law students and lawyers feel the same way. But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.
December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)