Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, November 17, 2019

Do Federal Courts Make Decisions Based on Ideological Considerations?

It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.

But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?

Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.

First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.

Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.

Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.

Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.

Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.

Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.

November 17, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Monday, November 11, 2019

Advocating For Veterans

Today is Veterans Day, and a couple of times this weekend I was reminded of the sacrificial service by veterans to our country. First, I spent the weekend in beautiful Gulfport, Florida learning from and connecting with practitioners, judges, and professors at the Reimagining Advocacy Conference hosted by Stetson University. The Keynote Speaker Friday night was Stacey-Rae Simcox, Professor of Law and Director of Stetson University College of Law’s Veterans Law Institute and Veterans Advocacy Clinic. Professor Simcox, a veteran herself, spoke movingly about her work with veterans in Stetson’s Veterans Advocacy Clinic and the need for attorneys to represent veterans in their benefit appeals. Second, I stayed in the Madeira Beach Courtyard Marriott, and Saturday morning as the sun rose, the VFW next door piped patriotic music into the parking lot. As I sat on the balcony listening to the Marines’ Hymn, I decided to dedicate today’s posts to veterans, the legal advocacy challenges they face, and the ways that attorneys can help.

Professor Simcox’s remarks focused on the intersection of Veterans Law and Advocacy. In keeping with the conference theme of Reimagining Advocacy, Professor Simcox stated that the future of advocacy for veterans was collaboration. Professor Simcox helped establish a medical-legal partnership between Stetson University College of Law and the University of South Florida’s Morsani College of Medicine. Partnerships like these help to treat the whole person.

Additionally, Professor Simcox is president and one of the founding members of the National Law School Veterans Clinic Consortium. This consortium allows clinics to share resources and referrals to support each other and offer broader service to veterans around the nation. According to a press release: “NLSVCC members work together on advocacy efforts, including joint amicus briefs to encourage systemic change benefitting veterans; host national conferences to train others how to provide pro bono legal services to veterans; and share best practices among members and community partners such as the VA [and] the ABA.”

As to the specifics of representing veterans in appeals, Professor Simcox pointed out that veterans are only allowed to hire an attorney once their benefit application is denied. Denial of benefit appeals beyond the VA have only been allowed for about 30 years, so it’s still a relatively new practice area. There is a steep learning curve for practitioners looking to represent veterans before the VA. See this ABA Article on Attorneys Representing Veterans. But there is absolutely a need. According to Professor Simcox, 22% of veterans are still pro se in their appeals to the VA.


If you would like to get more involved in helping veterans with their legal needs, the ABA Veterans Legal Service Initiative has compiled resources and volunteer opportunities here. The ABA also has resources for veterans and their families and caregivers on that same page. You can also donate to support the National Law School Veterans Clinic Consortium here. A list of all of the law schools with Veterans Clinics can be found here. If your alma mater has a Veterans Law Clinic, why not designate a gift to that clinic the next time you are contacted for a donation? For those who teach in law schools with veterans clinics, encourage your students to take those clinics.

Finally on this Veterans Day, I want to thank the many veterans I know and respect for their service, including my many veteran students and former students. Also, Professor Ann Ching, one of my former colleagues at Pepperdine and who now teaches at Arizona State University, expanded my awareness of this area of law with her work as pro bono counsel for veterans before the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. As a former JAG officer, Professor Ching serves as an incredible mentor to veteran students in addition to her advocacy for veterans.

While only some of us can take on a veteran appeal, we all can honor veterans’ service and find ways to make sure that our country fulfills the promises we have made to them.

November 11, 2019 in Appellate Advocacy, Federal Appeals Courts, Law School | Permalink | Comments (0)

Saturday, November 2, 2019

Kahler v. Kansas – Should States Be Permitted to Abolish the Insanity Defense?

On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.[1]

By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense.[2] The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime.[3] Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law.[4] A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime.[5] Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.[6]

Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases.[7] The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses.[8] Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.[9]

This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes.[10] It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.

Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.

Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component.  This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act.  This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.

[1] See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.

[2] See id.

[3] See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.

[4] See id.

[5] See id.

[6] See id.

[7] See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).

[8] See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.

[9] See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.

[10] Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.

November 2, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 29, 2019

Who Really Drives the Appellate Litigation Bus?

No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.

When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts.[1] Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before.[2] In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.[3]

Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.[4]

It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases.[5] The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.

One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.

This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.

 

[1] Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).

[2] See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).

[3] See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).

[4] Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.

[5] See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).

October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 28, 2019

Tips for Excellent Appellate Advocacy

Arguing before an appellate court, particularly for recent graduates or those with limited oral argument experience, can be daunting. Below are ten tips that will enhance the persuasive force of your argument, strengthen your oral argument skills, and maximize your chances for success.

    1.     Have an outstanding introduction

When preparing for oral argument, be sure to prepare a concise and persuasive statement (no longer than two minutes in length) in which you set forth the most favorable precedent, facts, and arguments that support the remedy you are seeking. The reason is that the judges will likely begin to ask you questions shortly after you begin your argument. Thus, it is critical to ensure that you begin with a powerful introduction and emphasize the strongest aspects of your argument before the questions begin.

    2.     Anticipate questions that the court will ask – and prepare effective responses

When arguing before an appellate court, the majority of your time will likely be spent responding to the judges’ questions. And you can be sure that the judges will focus on the weakest aspects of your case. Thus, when practicing for oral argument, it is critical for you to identify and address unfavorable facts and precedent. In so doing, your goal should be to convince the judges that the presence of unfavorable law or facts should not affect the remedy you are seeking.

    3.     Prepare, Prepare, Prepare

In the weeks (or months) before an oral argument, you should prepare extensively. Specifically, you should be able to discuss the record below, the relevant facts, and the governing precedent, and address relevant counterarguments without referring to any notes. Indeed, your command of the facts and law will enhance your credibility and enable you to deliver a compelling argument.

    4.    Concede weaknesses in your argument and acknowledge unfavorable facts

In almost any case, there will be weaknesses in your argument. For example, there may be facts or precedents that are not favorable to your position. When arguing before an appellate court, do not be afraid to acknowledge these weaknesses. Doing so will enhance your credibility with the court. For this reason, you should be prepared to explain why unfavorable facts or precedents should not affect the remedy you are seeking. For example, if you are confronted with unfavorable precedent, be prepared to explain why such precedent is distinguishable or would lead to an unjust result.

    5.     Be respectful to the court and your adversary

This should go without saying, but at all times you must be respectful to the appellate court, the lower court, and your adversary. Thus, be sure not to interrupt the judges when you are asked questions. Do not insult or attack the lower court or your adversary. Always speak in a measured and respectful tone, making sure not to use over-the-top language or express unnecessary emotion. Failing to maintain professionalism will detract from your credibility and reduce the likelihood that you will succeed.

    6.    Consider the impact of a ruling in your favor on future cases

Understand that, when an appellate court is deciding your case, the court is also considering how a ruling in your favor will affect future cases. For example, if the court adopts your proposed rule, will it lead to an unjustifiable expansion of the law or have unforeseen consequences that the court would not countenance? Thus, when preparing for oral argument, be sure to consider the policy implications of a ruling in your favor and be prepared to address how such a ruling will impact future cases in different contexts.

    7.     Respond to the judges’ questions directly

Excellent advocates never attempt to evade a judge’s question. If you do so, the court will likely get frustrated and view the strength of your argument less favorably. Accordingly, be sure to answer every question directly by relying on the relevant facts and law. And remember that the judges’ questions are a window into how the judges are considering the merits of your case, and thus an opportunity to convince the judges that their concerns are best addressed by ruling in your favor.

    8.     Speak slowly and be aware of your non-verbal actions

It is natural and entirely normal to experience anxiety before an oral argument. Knowing this, be particularly mindful of the manner in which you deliver your argument. For example, do not speak too quickly. Instead, gather your thoughts and speak in a conversational, respectful tone. And be sure not to fidget or move unnecessarily at the lectern. Keep your composure and your focus on the facts and law. After all, your non-verbal actions can often be as revealing as your verbal communications.

    9.    Be aware of the time – and practice under timed conditions

During most oral arguments, you will have up to thirty minutes (and sometimes less) to present your argument. You should practice under timed conditions to ensure that you can provide the court with the strongest and most relevant points supporting a ruling in your favor. In so doing, you should prepare a concise list of your most important arguments and make sure that, no matter how intense the questioning, you communicate these points either at the beginning or end of oral argument.

    10.   Prepare an excellent closing

Be sure that your closing statement is as powerful as your opening statement. Regardless of the questions that you are asked, make sure that you end your argument by providing the court with the strongest argument(s) that support the remedy you seek. Indeed, just as you want to create an excellent first impression at the beginning of an oral argument, you also want to provide the court with a powerful ending that offers compelling reasons to rule in your favor.

Extra tip: Have fun and do your best. You have a unique opportunity to obtain a favorable ruling on behalf of your client and effectuate a positive change in the law. Don’t put too much pressure on yourself. Do your best and relish the opportunity to make a meaningful difference in law.

October 28, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, October 20, 2019

June Medical Services v. Gee and the Future of Abortion Rights

On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services.[1] The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.

By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion.[2] In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health.[3] Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.[4]

In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services.[5] Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion.[6] In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases.[7] And when complications did occur, they rarely required hospital admission.[8] Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.

In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.

Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.[9]

This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.

[1] No. 18-1323 (2019).

[2] 410 U.S. 113 (1973).

[3] Id.

[4] 505 U.S. 833 (1993).

[5] 579 U.S              , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).

[6] Id. at 2311.

[7] Id. (internal citation omitted).

[8] Id.

[9] See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.

October 20, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 15, 2019

Ethical Issues on Appeal

Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.

Model Rule 1.1: Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.

Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:

were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.

Id.

The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.

The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.

Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:

(a)     A lawyer shall not knowingly:

          ***

          (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]

Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.

Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.

In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.

In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.

The court admonished:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.

Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:

Ostrich

 

Id.

While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.

Finally, appellate counsel must be mindful of Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .

Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).

Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.

The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:

Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

Id. at 148-49.

Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.

We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.

October 15, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Tuesday, October 8, 2019

Ethical Rules for the Supreme Court

Diogenese

The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.

One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.

Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."

This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.

Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.

This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."

This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?

These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.

That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."

Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.

The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.

* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).

(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)

October 8, 2019 in Appellate Court Reform, Appellate Justice, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Saturday, October 5, 2019

Join the Bars of our Federal Circuit Courts of Appeals, & Then Brag About It

    Recently, in a first-year writing class covering hierarchy of authority and our U.S. Court system, my students and I discussed membership in the bars of the United States Supreme Court and Circuit Courts of Appeals.  The 1Ls did not know these courts have separate bars and admissions, and asked how and why practitioners might join.  I shared the process for the Supreme Court and the Ninth Circuit (we’re in California) with them, and let them know they might even participate in a December group swearing-in at a Circuit Court one day.  Many students said they would see these memberships as prestigious and impressive. 

    The class discussion led me to survey my local appellate pals informally.  While a few were jaded about the value of listing these bar admissions in their firm bios or on resumes, many of our appellate community practitioners use memberships in these bars as indicia of appellate experience, especially if they do not have a state appellate specialization to list.  A search of Twitter reveals attorneys bragging about their federal licenses, and one friend told me she added all of her federal bar admissions to her LinkedIn profile when she let her state appellate specialization expire.  Another colleague told me partners asked about these admissions when he wanted to move from litigation to an appellate department at a large law firm.  While this is anecdotal evidence, it supports the value in highlighting any federal bar memberships, especially appellate court bar memberships.

    Therefore, the next time you update a professional profile, you should consider adding any federal bar admissions you have.  In fact, one law school career development office expressly suggests doing so.  https://pennstatelaw.psu.edu/career-planning-and-development/alumni-career-services/adding-bar-admission-your-resume

    Curious about applying to a federal bar?  Check out the court’s website.  If you do not have an account for online filing, you will need one to practice at the Circuit Court (and sometimes you need to be a member first to create these accounts), so learn about PACER and CM/ECF, and start your registration process.  Most of the Circuits still require anyone not newly admitted to a state bar to have either a sponsor or a clerk certification, and to also obtain a certificate of good standing from their state bar.  E.g., https://www.ca9.uscourts.gov/content/atty_instructions.php; http://www.ca2.uscourts.gov/clerk/attorneys/admission_instructions.html.  Moreover, while the forms are now available online through PACER, the $220-230 fee required by the courts is not de minimis.  These are even more reasons to brag about your membership once you join.  And, if you want the details for each federal court, author and general counsel John Okray has written an entire book on admission to the various federal district and circuit courts, U.S. Federal Courts: Attorney Admission Requirements: 2011 Edition (2nd Revised Ed. Lawyerup Press 2010). 

    Please feel free to comment about the memberships you list on your profiles and bios.  I’ll be sure to share comments with my students.  Thanks!

October 5, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

Tuesday, October 1, 2019

Unpublished Decisions in the Google era

    Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.

    Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished.[1]  Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.

    But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.

    Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.

    Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.

    In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.

 

[1] “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).

October 1, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts | Permalink | Comments (0)

Saturday, September 21, 2019

An Old Resource Is New Again—Searchable "Constitution Annotated" Now Online

Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated.  According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it."  The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time."  https://constitution.congress.gov/about/

The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers.  The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional. 

Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited.  Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only.  On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.

In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained:  “Unfortunately, the public facing version is not . . . lucid.”  The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen."  The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public.  Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students."  https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.

Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated.  While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested.   On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”

Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions.  Moreover, the pages are integrated nicely with the Library’s other resources.  For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.

For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource.  Hopefully, the continued updates will be quick and helpful as well.  Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.

September 21, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech | Permalink | Comments (1)

Tuesday, September 10, 2019

Frenemies of the Court - Weaponized Amicus Briefs

Scotus armor

 

Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.

That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.

1. Amicus briefs should add something new and valuable to the case.

First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.

“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).

A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.

2. Amicus briefs should not be used for personal attacks.

Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:

Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.

The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."

Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.

Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.

3. Amicus briefs should not inject extrajudicial facts or junk science.

Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.

Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.

(I thought my title was creative until I came across Helen Anderson's, "Frenemies of the Court: The Many Faces of Amicus Curiae," 49 U. Rich. L. Rev. 361-416 (2015); University of Washington School of Law Research Paper No. 2014-25. Available at SSRN: https://ssrn.com/abstract=2474729 or http://dx.doi.org/10.2139/ssrn.2474729 . Not only did Anderson come up with part of my clever title before I did, but she also does a great job in the paper of categorizing the types of amicus briefs filed.)
 
(image credit - untitled political cartoon by Clifford Berryman from the 1930s)

September 10, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Wednesday, September 4, 2019

Federal Court Practitioner Guides on Oral Argument

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I'm often asked by practitioners who are preparing for their first oral argument in the United States Court of Appeals for the Seventh Circuit about good resources regarding what to expect. And my answer's always the same: read the Handbook. The court maintains an excellent Practitioner's Handbook for Appeals. And thank goodness it does. For one thing, the Seventh Circuit is notoriously persnickety about compliance with briefing rules. As the Handbook notes, its clerks flag about 10–15% of briefs tendered for filing as deficient. The Handbook gives detailed advice about how to avoid getting your brief bounced, including four pages on generating an unrejectable jurisdictional statement. The court's advice on brief content requirements nicely fleshes out the requirements of FRAP Rule 28(a) with concrete tips about drafting segments of the brief. And its eight pages on typography in briefs: indispensable. 

The Handbook also isn't half bad as a primer on oral argument. The Seventh Circuit is an oral argument-heavy joint. Unlike in most circuits, oral argument is the norm; with rare exceptions, the court schedules oral argument in all counseled cases. So it's not surprising that a big chunk of the Handbook (nine tersely-written pages) describes the process of oral argument in the circuit. The advice about sound presentation is all excellent.

The Seventh Circuit is not alone in providing a practitioner guide that offers solid tips about oral argument. A few examples, with links that'll jump you to the oral argument stuff:

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And this tattoo-worthy tip:

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September 4, 2019 in Appellate Advocacy, Federal Appeals Courts, Oral Argument | Permalink | Comments (0)

Wednesday, July 31, 2019

Case Overload

I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.

Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.

These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.

See https://www.ncsc.org/Sitecore/Content/Microsites/PopUp/Home/CSP/CSP_AD_Overview

Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.

July 31, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Friday, July 5, 2019

Appellate Advocacy Blog Weekly Roundup Friday, July 5

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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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

@Steven Mazie had an article in the Economist this week reviewing the past term of the Court, its movement to the right, and the emerging political alignment of Justices Kavanaugh and Gorsuch.

The New Yorker had an article this week addressing how the Court’s recent decision in Gundy v. United States  likely foreshadows a shift in the Court’s position with regard to allowing Congress to broadly delegate authority to agencies.  Gundy involved a challenge to Congress’ delegation to the Attorney General the decision of whether mandatory registration requirements under the Sex Offender Registration Act apply to individuals who were convicted prior to the Act’s passage.  Gundy is such a defendant, did not register, and was charged and convicted as a result.  He challenged Congress’ delegation as impermissible.  As the article notes, the Court has long allowed Congress broad authority to make such delegations.  In Gundy’s case, the Court was divided with the four more liberal Justices voting to continue allowing delegation, three more conservative Justices voting to deviate from prior law, and Justice Alito siding with the more liberal Justices but explicitly indicating that if a majority of the Court was inclined to change the law, he’d be on board.  The decision in Gundy strongly suggests that the next case to raise the issue to the Court will likely be decided differently because Justice Kavanaugh had not yet been confirmed when it was argued and did not participate.  The article notes that changing this practice of delegation may result in wide sweeping changes to federal government, as a substantial amount of federal law currently depends heavily on such delegations to agencies.

FiveThirtyEight.com had an article this week reviewing the voting habits of the members of the Court (especially the conservative members) since the retirement of “swing vote” Justice Kennedy.  The article suggested that the Court could be viewed now as having three swing Justices, depending on the issues presented – Justice Gorsuch joined the more liberal members of the Court in more closely divided cases than any of the other more conservative Justices, while Justice Roberts provided the decisive vote on the recent census case.  Additionally, the early voting trends suggest that Justice Kavanaugh is likely the current “middle” of the Court, pushing it more conservative even while he seems to be more ideologically moderate than Justice Gorsuch.

The ABA Journal took a look this week at Justice Thomas' 30 year career on the Court, emphasizing his enigmatic persona -- "supporters and detractors are still debating who he really is."  He's now the longest-serving member of the Court and the senior associate Justice.  On the bench, he's known for rarely speaking; off the bench, he's known for being quite jovial and chatty. 

 

Federal Appellate Court Opinions and News:

In the Third Circuit Court of Appeals, Amazon was held strictly liable for injuries caused by defective products sold by other vendors on its website.  The case was Oberdorf v. Amazon.com.  More from the CA3blog.

 

State Appellate Court Opinions and News:

The Iowa Court of Appeals this week reversed a jury's decision that had awarded an Iowa couple $3.25 million after they claimed their adoption attorney failed to file paperwork on time and lead to them losing the child they planned to adopt.  The couple cared for the boy for a few months, but were then required to return him to his biological parents after the couple's attorney did not have the biological parents sign termination of parental rights documents.  The child died from severe head injuries a month later, and the biological father was convicted of second-degree murder.  In reversing the malpractice damage award, the appellate court concluded that the couple had failed to show that the attorney engaged in illegitimate conduct especially likely to produce serious emotional harm and had not show that he had a duty to exercise care to avoid causing emotional harm.  More here.

 

Practice Tips and Pointers:

#AppellateTwitter discussion this week on Twitter addressed lawyers and social media – many good thoughts throughout the Twitter thread started by @RachelGurvich  right here.

July 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court, Weblogs | Permalink | Comments (1)

Saturday, April 20, 2019

Saying Less: the revised Supreme Court Rules and cutting words

On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs.  The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000.  The change brings the Court in line with the federal Courts of Appeal.  Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs. 

The Court rejected one of the more controversial proposed rules.  That proposal would have limited reply briefs to 4,500 words.  Even so, the Court did shorten the time for filing a reply brief.  Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier.  The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.

 So why did the Court adopt these changes?  I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long.  Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two.  It's clear that some lawyers—yours truly included—forget that sometimes. 

So how can you come in under these shorter word limits?  That's simple—better writing.  Here are some things to do, and to avoid, to bring your brief under the word limit.

  • Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about."  Don't.  Instead of these wordy phrases, try "under," "before," and "on."  This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up.  As an aside, I've also encountered several that use "pursuant to" incorrectly.  Things don't happen "pursuant to" anyone's recollection.  If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
  • Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words.  Consider the common phrases "the issue of" or "the question of."  You're likely able to pull those out without doing violence to your brief.  Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
  • Do run a search for "ly." You're hopefully not going to find very many adverbs.  But if you do, take them out unless they're necessary.  Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
  • Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story.  It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have.  Even though replacing your client's four-word name would save space, resist the urge.  I promise, what you're gaining in space, you're giving up in clarity.
  • Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019.  If you've got to describe a temporal relationship, try words like "later" or "before."  Otherwise, just save the words and use the month or month and year. 

These aren't all the ways to save space.  But writing shorter, more coherent briefs is a mindset.  You have to start somewhere.

April 20, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing | Permalink | Comments (2)

Tuesday, April 16, 2019

The U.S. Supreme Court and Its Political History.

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Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.

I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.

First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.

This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.

This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.

After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.

That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.

In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.

The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.

In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.

There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.

Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.

Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.

(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)

April 16, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 5, 2019

When the law loses its way

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There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.

Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.

Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”

A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.

Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.

Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:

The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.

After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:

The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.

Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).

And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.

Not surprisingly, a long catalogue of abuses followed.

In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.

In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money -  donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.

In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.

More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.

These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.

Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.

Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.

(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)

March 5, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, February 25, 2019

Moot Court Season

Moot Court season is upon us.  Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics.  This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace).  Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA.  (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional). 

This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition.  We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.

The University of Houston has already started tabulating the top moot court programs for its rankings.  This year the current top 5 is Texas heavy:

  1. Baylor
  2. Loyola University
  3. South Texas
  4. University of Georgia
  5. University of Houston

I really love moot court.  I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem.  Moot court has many benefits for students.  While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently.  For most moot court competitions, students cannot receive any outside help on their briefs.  For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management.  Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers.  I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice.  Moot court does that for law students.

Moot court has benefits for the local legal community too.  Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law.  Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam.  It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around).  I also think that moot court gives us hope for the next generation of lawyers.  They can, and will, do great things.  That is exciting.

But, despite the excitement, moot court isn't perfect.  It isn't perfect because we all know that the briefs are way more important than the arguments in real life.  It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads.  I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge.  She clerked for Judge Jerome Frank on the Second Circuit.  She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.

So how do gender stereotypes play a role in moot court?  Next post I will look at an article on this topic.

 

February 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, Tribal Law and Appeals | Permalink | Comments (0)

Tuesday, February 12, 2019

Appellate Advocacy 101: On the Basis of Sex

Last night, I watched On the Basis of Sex with first-year law students.  Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972).  Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.

On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy.  The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument.  After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks.  Below are some of the lessons learned.

Appellate Practice Is a Lot of Work

Most of the movie occurs outside the courtroom.  Students saw Ginsberg meet with Moritz to discuss taking an appeal.  They saw her strategize with other attorneys about arguments.  She works with her husband, a tax attorney, and her staff and students at Rutgers Law School.  She researches, writes, and rewrites the appellant’s brief.  When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one.  She takes a settlement offer to her client.  Before oral argument, Ginsberg practices before a moot court and then before a mirror.  Ginsberg works hard.  The process takes a long time. 

Oral Argument Is a Little Scary

The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit.  Students noted how different oral argument looks from the trials they had seen on TV.  There is no jury.  A lone attorney stands before a panel of three judges.  They remarked how Ginsberg was nervous and awkward at first.  The judges directed the course of the argument.  They interrupted with questions. 

The students began to imagine what it will be like when they argue in April.  We discussed how preparation goes a long way toward easing nerves.  I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society.  I encouraged them to practice in front of a mirror like Ginsberg.  I shared that it is normal to be nervous, especially for your first argument.   

One Case Can Be Two Different Stories

The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code.  The law was clear.  Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man.  Had he been a woman, divorced, or a widower, he would have been eligible for the deduction. 

The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case.  The IRS portrayed Mr. Moritz as a tax cheat.  Ginsberg held him up as a loving and devoted son.  The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender.  Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.

During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped.  Ginsberg picked up on this point during her rebuttal.  She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change.  Students were struck by this exchange.  Each side used the same words to make two very different points.

At the end of the evening, students left our gathering excited, inspired, and a little nervous.  I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way.  Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers.  Through this movie, Justice Ginsberg is still doing just that.

February 12, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)