Appellate Advocacy Blog

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy
Major Premise	Minor Premise	Conclusion
People can either like Star Wars or Star Trek, but cannot like both	You like Star Trek	You do not like Star Wars
False	True	Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy
Major Premise	Minor Premise	Conclusion
The best resolution of any valuation issue is the average of the two expert opinions	Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000	The property is worth $325,000
False	True	Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy
Major Premise	Minor Premise	Conclusion
The Earth might be flat or round	I believe the Earth is flat	The Earth is flat
False	True (he “believes”)	Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

AAA Adds Appellate Process

In the category of "not quite new" news, the American Arbitration Association amended its rules effective November 1, 2013.  While a number of rules were amended (as discussed more thoroughly at ADR Prof Blog), a significant rule addition of interest to appellate practitioners is the inclusion of an appeals process.  This is significant because opponents of arbitration have long argued that arbitration has a much greater likelihood than traditional court litigation to end up with unjust conclusions.  This concern is premised on the possibility that arbitrators, some being non-lawyers, may not properly construe the law - resulting in inconsistent and perhaps inconceivable outcomes.  When you couple this concern with a strict standard of review on appeal, it is understandable why some people shy away from arbitration.  

As it stands without consideration of the AAA rule change

When a party appeals an arbitral award, the Federal Arbitration Act (FAA) section 10 dictates the very limited areas where vacatur is permissible.  These primarily include:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

 

Some courts have construed this to create a "manifest disregard of the law" standard.  This standard greatly reduces the chances of reversal on appeal.  The Supreme Court in Hall Street Associates also held that parties cannot by contract expand the scope of appellate court review.  Therefore, parties agreeing to arbitrate disputes are stuck with the language articulated in the FAA.  While this limited standard of review can be seen as good for expediency in bringing an end to the dispute (timely dispute resolution is a major reason why people choose ADR), it certainly can be painful for the disputant on the wrong end of the decision and facing the daunting prospect of a reversal on appeal.

 

Changes made to the AAA process

 

The changes made by AAA now allow the parties to select an appellate review process within the scope of their arbitral contract, therefore not implicating how a court will later review the arbitral decision.  The rules permit Appeal Tribunal review of errors of law deemed material and/or prejudicial, as well as clearly erroneous factual determinations.  Parties selecting this process can file an appeal within 30 days of the arbitrator's award, and it is "possible" that the process, including the time allotted for briefing, will not exceed 3 months.    The appellant's brief is filed 21 days after the Notice of Appeal is filed, and appellee's brief is due 21 days thereafter.  A Reply Brief can be filed within 7 days.  No more than a 7-day extension of time to file a brief will be granted.  The parties can request oral argument.  Once the last brief is submitted, or oral argument is concluded, the Appeal Tribunal will render a decision within 30 days.  The arbitrator's award will not be considered final, for the purposes of any later court action to modify, enforce or vacate it, until after the appellate process is complete.  

 

These changes are good for the arbitration process.  It allows parties to expand the scope of review within the arbitration process itself, and to essentially get two bites at the appellate apple.  The one negative is that it expands the time spent on the dispute, but this is not really problematic since the parties agreed in advance to allow for this additional appellate process.  One important limitation to note is that these rules do not apply to businesses utilizing standard, non-negotiable consumer arbitration contracts.