Appellate Advocacy Blog

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

Friday, November 2, 2018

Appellate Advocacy Blog Weekly Roundup Friday, November 2

 

WeeklyRoundupGraphic

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 a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

The Supreme Court has proposed a number of revisions to the Court’s Rules and has invited public comment.  Among the highlights are proposals to lower the maximum word count on merit briefs and tighten filing deadlines.  See more HERE.  

This week the Court denied entry to court to a tribal leader wearing a headdress, making headlines.   Read the story HERE.  The tribal leader, Yakama Nation Tribal Council Chairman JoDe Goudy, was attempting to enter court to hear arguments involving a treaty between his tribe and the federal government, and he insisted on wearing his tribal regalia.  Representatives of the Court indicated that Goudy had been notified ahead of time that head coverings are only permitted in the courtroom for religious or medical reasons.

Justice Sandra Day O’Connor’s announcement that she is withdrawing from public life in the wake of early onset dementia continues to ripple through the legal community; her impact on the American legal landscape really can’t be overstated.  The Washington Post had this opinion piece.  

 

State Appellate Court Opinions and News:

On Thursday this week, the Nebraska Supreme Court heard oral argument in a case involving the Keystone XL Pipeline.  A link to video stream is available HERE

State courts involved in impeachment battles may mark a worrying new trend to challenge judicial independence and legitimacy:  Story HERE.

November 2, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 29, 2018

Making a Murderer, Indian Law, and Habeas Corpus

Recently, habeas corpus has been on my mind.  It is partly because I have started watching season 2 of Making a Murderer.  To me, the most interesting part of the second season is the saga of Brendan Dassey's habeas petition, which is based in part on the involuntariness of his confession.  I found the circumstances around Brendan's confession quite troubling.  Several months ago I spoke at an appellate conference that also featured Steven Drizin, one of Brendan's post-conviction attorneys.  Steven's presentation on false confessions was fascinating.

In season 2 of Making a Murderer, Steven and his colleague Laura Nirider do an excellent job explaining the habeas process in layman's terms.   Because Brendan's conviction was in Wisconsin state court, he cannot prevail on habeas unless he can show that the state court conviction,

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
 
28 U.S.C. § 2254.
 
If Brendan had been convicted in federal court, he would have to show "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . ." 28 U.S.C. § 2255.  
 
While it is hard to win on any type of habeas petition, the state standard is extra deferential to the underlying conviction.  As Steven explains in season 2, the state standard was modified in 1996 in the wake of the Oklahoma City bombing with the passage of the Anti-terrorism and Effective Death Penalty Act.
 
So, what does this have to do with Indian law?  My appellate advocacy students are currently working on their briefs for my class.  Their problem involves a habeas petition from a Tribal court.  Under 25 U.S.C. § 1303, "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."  That is it.  This provision was passed in 1968, and it hasn't been modified since.  As Prof. Jordan Gloss notes in the American Indian Law Review, this hasn't been a big issue historically because federal courts have not had to handle a lot of habeas petitions from Tribal courts. This is due, in part, to the limited sentencing capacity that Tribal courts had.  However, in 2013, Congress passed the Violence Against Women Reauthorization Act, which, in part, gave Tribes that opted-in to the Act limited jurisdiction over certain non-Indians who committed acts of dating or domestic violence against Tribal members. See 25 U.S.C. § 1304.  Additionally, the 2010 Tribal Law and Order Act gives tribes additional sentencing power.  Combined, these two acts mean that federal courts will have to handle more habeas petitions from Tribal courts, potentially including Tribal convictions of non-Indians.
 
I agree with Prof. Gloss that Congress is going to need to step in to clarify what the habeas standard will be for Tribal convictions.  If it doesn't, I am sure that the courts will.

October 29, 2018 in Current Affairs, Federal Appeals Courts, Television | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 24, 2018

Seventh Circuit Benchslap II: Word Count Edition

So this one was more of a Judge-Easterbrook-wastes-no-teachable-moment moment than a true bench slap of the sort that Tessa discussed this week. But still.

Appellate practitioners in my region know well that the Seventh Circuit is a stickler on all-things-brief. It's not so much that its rules are demanding; Circuit Rule 32, for example, actually imposes looser formatting and word-count rules than the FRAP defaults. But the circuit strictly enforces its rules. And it is quite opinionated about things that keep one's brief from being a miserable slog to read. Like clean, modern typography. Section XIII of its Practitioner's Handbook for Appeals (pdf) offers an excellent set of suggestions for making briefs more readable. The Handbook reflects a lot of knowledge and thought about the art and process of generating printed words on a page.1 Much of that material in the Handbook probably is the handiwork of Judge Frank Easterbrook. As one can see from section III of this piece, Judge Easterbrook (1) has thought a lot about how to generate attractive written work product and (2) knows his stuff about the technical ins and out of producing it.

Which brings up to today's bench-slap-that-was-really-a-gentle-by-Easterbrookian-standards-bench-lesson. As Brad Heath of USA Today tweeted earlier today, Judge Easterbrook issued an opinion this morning that gave a pro-se litigant—and all of us, really—a lesson about the quirks of Microsoft Word and, like, words. As in word counts. And that lesson might help some of us avoid getting benchslapped for real. 

The word-count issue came to Judge Easterbrook in his role as motions judge. An appellee sought permission to file a brief containing more words than permitted by circuit rules. Their justification: their pro-se opponent represented that his brief contained less than 14,000 words, but it actually blasted past the limit by more than 2,500 words. So Judge Easterbrook struck the appellant's brief, ordered him to file a shorter one, and directed him to explain why he should not be sanctioned for falsely representing that his initial brief complied with the word limit. Here's how the appellant responded:

Screen Shot 2018-10-24 at 6.41.52 PM

Seems reasonable, right? Who among us has not looked at the "Properties" panel to get our Word count?

Turns out that we're doing Word wrong. Judge Easterbrook exposes the error of our ways:

Screen Shot 2018-10-24 at 6.46.28 PM

So word to the wise: don't use the "Properties" panel to certify your word count. Especially if your brief has footnotes.

Things ended reasonably well for our Word-challenged pro-se appellant. There was no bench slap; just an order to go forth and be Word savvy and word-count compliant:

Screen Shot 2018-10-24 at 6.48.50 PM

So, at certification time, remember: Word Count panel. Accept no substitutes.


1. For more, read Matthew Butterick's Typography for Lawyers and Ruth-Ann Robbins's classic "Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents." 

October 24, 2018 in Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

Special thanks to Alison Doyle for her help with this blog post.

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Monday, September 24, 2018

Advocacy Before the Eleventh Circuit: A Clerk’s Perspective

Today we are featuring a guest post from Kevin Golembiewski.  Kevin Golembiewski and his colleague, Jessica Arden Ettinger, recently posted a law review article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, on the Social Science Research Network.  This post previews the article.

From 2015 to 2017 I served as a law clerk to the Honorable Charles R. Wilson of the United States Court of Appeals for the Eleventh Circuit.  For those two years I was part of something much bigger than myself.  The Eleventh Circuit is not simply a collection of appellate judges—like every appellate court, it’s an institution, with its own unique history, practices, and traditions. 

Attorneys who practice before the Eleventh Circuit should keep this in mind.  Effective advocacy requires recognizing and taking into account the court’s distinct characteristics and institutional features.  For example, the court affords Federal Appendix decisions limited weight, so attorneys should avoid relying on them.  Also, as one of the nation’s busiest circuit courts, the court assigns most appeals to a non-argument calendar, so attorneys should approach briefing as if it’s their only opportunity to persuade the court.

To help attorneys navigate the Eleventh Circuit’s unique institutional features, a former co-clerk, Jessica Arden Ettinger, and I recently wrote an article providing advice that is tailored to the court.  In the article, Advocacy Before the Eleventh Circuit: A Clerk’s Perspective, Jessica and I offer our views, as former clerks, on how to draft a compelling brief and present a persuasive oral argument to the court.

We begin the article by examining the Eleventh Circuit’s history, caseload, and decision-making process.  In 1981, Congress split the old Fifth Circuit, creating the current Fifth Circuit and the Eleventh Circuit.  It assigned twelve judgeships to the Eleventh Circuit.  Although the court’s caseload has drastically increased since 1981, it still has just twelve judgeships.  Even so, the court resolves appeals expeditiously.  The median time between a notice of appeal and a decision in the Eleventh Circuit is just 8.6 months, compared to 9.9 months in the Fifth Circuit and 14.7 months in the Ninth Circuit (the Fifth and the Ninth Circuits are the only two circuit courts with larger caseloads than the Eleventh Circuit).  The court achieves this quick turnaround time by utilizing a Staff Attorney’s Office, maintaining a non-argument calendar, and inviting judges from other courts to sit on oral argument panels.  In the article, Jessica and I discuss how these case-management techniques shape the court’s review process.

After introducing the Eleventh Circuit, Jessica and I offer advice on drafting appellant briefs, appellee briefs, and reply briefs.  In addition to providing advice specific to each type of brief, we offer advice applicable to all of them.  In our view, the first step in drafting any Eleventh Circuit brief is to understand the court’s norms and expectations.  There are two norms that the court prioritizes: collegiality and candor.  The court expects collegiality among its judges, district court judges, and members of the bar.  Disparaging the district court, an adversary, or a prior panel’s decision will undermine a brief’s credibility.  The court also expects candor.  It has thousands of cases to resolve each year—briefs must get to the point and be frank about the appeal’s issues, facts, and applicable law.  Grand assertions about an appeal’s legal significance and attempts to spin the facts and the law will backfire.  As former Chief Judge of the Eleventh Circuit Joel Dubina once said, “A lawyer should not embellish and exaggerate in the Eleventh Circuit.”

Jessica and I conclude the article by offering tips on presenting oral argument to the court.  The court takes a pragmatic approach to oral argument, hearing argument only when it will help the panel decide the appeal.  This pragmatic approach informs our advice.

Clerking on the Eleventh Circuit was one of the best experiences that I’ve had as a lawyer.  It is an institution that I will always revere.  I hope Jessica and my article serves as a useful guide for those who have the privilege to practice before the court.

September 24, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts | Permalink | Comments (0)

Wednesday, June 6, 2018

Oral Argument & Betterment

Over the last few weeks, I've worked with a young lawyer as he prepared for his first appellate oral argument in an important federal case. And I experienced what is, at this point in my career as a teacher of advocacy skills, the familiar thrill of watching a good lawyer quickly get better. I hope the oral arguments in the case lead to better results than we'd see in whatever outcome and reasoning the panel would have reached based on the briefing alone. But I know this: preparing for and presenting the argument has made my colleague better.

In the last two posts on this blog, Tessa and Dan discuss recent pieces in the New York Law Journal and the National Law Journal on the steep quantitative decline of oral argument in the federal circuit courts. This decline is, perhaps, inevitable in an era of expanding dockets and technological advances that make briefs relatively cheap to generate and consume (I said relatively; don't @ me). But my reflex is to bemoan the lack of betterment that must accompany this decline. I'm not talking so much about the betterment of case outcomes or of society more generally. The hit to that species of betterment is, no doubt, real and worthy of discussion. And it has been discussed, well and often, on this blog and elsewhere. See, for example, pieces by Jennifer and Tessa discussing a report from the American Academy of Appellate Lawyers on why the decline matters; see also this piece by David Cleveland and Steven Wisotsky. But the benefits of oral argument in bettering outcomes and society are marginal and difficult to quantify; perhaps they're mostly not worth the cost. I don't know.

I'm concerned about the betterment of lawyers. It's not just that, as oral argument rates decline, fewer emerging lawyers will develop experience in the art of oral advocacy. After all, if the need for oral argument artisans declines, then bemoaning the loss of opportunities to practice the craft would be like getting upset over the scantiness of job listings for haberdashers. 

It's that doing oral argument makes one a better lawyer. Preparing for oral argument makes one a better lawyer. Deeply. Quickly.

If one prepares properly, appellate oral argument is a nearly perfect pedagogical tool. One basically can't prepare for and present an oral argument without working through virtually all of the techniques recommended by learning scientists (summarized nicely in the book Make It Stick: The Science of Successful Learning). Oral argument is an intricate, dynamic exercise in retrieval practice; as such, it leverages the testing effect. It demands elaboration: advocates must explain complex subjects clearly and vividly, show connections, relate the abstract to the concrete, and so on. It requires one to construct and use a network of mental models. As advocates move though disparate bits of the argument, they interleave material. Particularly because advocates naturally spend much of their time at the podium getting tested, through interrogation, about the most challenging aspects of their theory of the case, oral argument produces desirable difficulty. Judges' reactions provide real-time feedback. Post-moot periods promote reflection, a key component of sophisticated learning and skill development. The dynamic of oral argument lends itself to spaced practice. And anyone who has had to perform in oral argument learns quickly that our usual, misguided ways of "learning" material -- reading and cramming, with little retrieval or performative practice -- don't help much. Prepared oral advocates learn, deeply, then teach, and learn more deeply for having taught. The expertise sticks.

Let's say I'm right that doing and preparing for oral argument is an especially powerful way for lawyers to develop expertise and skill. And let's say that oral argument skeptics and realists are correct that oral arguments only rarely affect outcomes in cases and most often aren't worth the cost. Maybe we can agree on this: let's push more oral arguments down to junior attorneys. That'll drop the costs. Maximize the benefit. Make a lot of forward-thinking courts happy. 

June 6, 2018 in Appellate Advocacy, Federal Appeals Courts, Oral Argument | Permalink | Comments (1)

Monday, June 4, 2018

Oral Argument News

Over the past two weeks there have been a few prominent stories on oral arguments.  These stories were featured in the Weekly Roundup, but I wanted to elaborate on them a bit more.

The first story concerns the D.C. Circuit's decision to live-stream the audio of oral arguments.  Danny noted the D.C. Circuit's announcement in the May 25 Weekly Roundup. In short, the D.C. Circuit has provided recordings of oral arguments since September 2013.  However, now they will live-stream arguments (barring any sort of "classified or sealed matters.").  This is great news!  Honestly, the federal courts are way behind on live-streaming.  Nearly two years ago I blogged on state efforts to live-stream arguments.  Many states live-stream more than just audio--they include video as well.  As a teacher of appellate advocacy, having my students watch oral arguments is a great teaching tool.  Those arguments don't always have to be live, but it does add a nice element.  For practitioners, the ability to listen or watch an argument from the office, rather than heading down to the courthouse, saves those precious billable hours.  Kudos to Chief Judge Garland for making this happen!

The second story, which Dan mentioned in the June 1 Weekly Roundup, is a story from the National Law Journal on the decline of oral arguments in the circuits.  While I wasn't able to pull up the NLJ article, on May 31 the New York Law Journal posted an article on the same subject.  According to the article:

The most recent year statistics available from the Administrative Office of the U.S. Courts—the 12-month period ending Sep., 30, 2017—had just 6,913 arguments out of the 34,561 appeals decided on the merits. That 20 percent is a far cry from the 27.3 percent of all cases a decade ago (8,662 arguments heard), and an even more steep decline from the 40.1 percent of cases (10,357 arguments heard) just 20 years ago—when oral argument data became available from the Administrative Office.

The article does a nice job of highlighting the arguments for and against oral argument.  In a nutshell--oral argument is expensive, time consuming, and not always helpful.  On the other, oral argument is an important bench/bar relationship and can help clarify judicial misperceptions in a case.  

It will be fascinating to see if argument numbers continue to decline. 

June 4, 2018 in Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (0)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

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

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

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But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Monday, April 9, 2018

Top Tips From Appellate Judges

After a two week travel hiatus, I am back to posting!

Last weekend I traveled to Little Rock, Arkansas to speak at the First Annual Justice Donald L. Corbin Appellate Symposium.  The Symposium was organized by the Pulaski County Bar Foundation and the Corbin family.  I had a marvelous time!  Not only were the speakers warmly welcomed and well-cared for, I was astounded by the quality of speakers that the Foundation secured.

Although my travel schedule prevented me from attending most of the symposium, I enjoyed Prof. Steven A. Drizin's presentation on false confessions by juveniles.  Prof. Drizin is part of Brendan Dassey's appellate legal team.  Attendees also heard presentations by Dean Erwin Chemerinsky, Judge Beverly Martin, Judge Mary Murguia, and Judge Bernice Donald.  And they heard a presentation from me. 

My presentation was entitled "Top 10 Tips from Appellate Judges."  As I noted at the start of the presentation, the irony of the topic was not lost on me.  Here I was, a law professor, giving tips from judges to a group of people who had heard from several distinguished appellate judges.  But, as I explained, my tips represented the views of the collective judiciary, culled from my work on the third edition of Winning on Appeal.  For the next several weeks, I am going to share a few of the tips from my presentation.

I started the presentation with the most important, most common, complaint about briefs that we received from judges--that they are just too long.  As one judge put it, "They're called briefs, not longs."

Why are overlong briefs so bad?  First, judges have a lot to read. The average federal appellate judge decides about 550 cases a year.  That means reading at least 100o briefs a year.  If each brief is 50 pages long, that means that judges read at least 50,000 pages of  briefs each year.  Second, long briefs are hard to read in one sitting, which makes it hard for judges to compare arguments between briefs.  Third, judges have finite attention spans.  It is hard to remain excited about reading a long, unfocused brief.

So, how do you cut down your brief?  The judges who responded to our survey for Winning on Appeal had some great tips, two of which I will share here:

  1. "Think first, and edit ruthlessly."  Think about what you need to prove to win, and orient your entire brief around that point (or points).  What is the "flashpoint of controversy" in the case.  If it is just about applying the law to the facts, don't spend pages in your brief justifying the legal rule.  Just apply the established rule to your facts.
  2. Avoid needless repetition or extraneous facts.  Again, keep your brief focused on the dispute. Only include materially important facts when describing extraneous cases, and in your statement of facts, don't go overboard on persuasive and background facts.

Writing a detailed outline before you start typing the argument is one way to keep your argument on track.

Next week I will discuss a second tip, which also helps keep your brief concise--selecting issues.

April 9, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

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

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

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

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

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

            Conclusion:                    Defendant was speeding

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

Logic 2

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

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

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

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

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

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

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

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

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

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

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

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

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

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

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

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

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

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

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

**********

It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

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

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Thursday, November 16, 2017

Should Judges Tweet?

This week the Senate held confirmation hearings on two nominees to the U.S. Court of Appeals for the Fifth Circuit, Justice Don Willett, a judge on the Texas Supreme Court, and James Ho, a private attorney. Ho fielded few questions compared to Willett's questioning, most likely due to Willett's more high profile media presence - he is known as the Tweeter Laureate of Texas. While Willett exhibits a lighthearted style and does not specifically make political tweets in his twitter feed, his social media presence does raise questions of how the public should view the judiciary. There are several pros and cons to the issue of judges having a social media presence, likely with the general public and the lawyer community having some different ideas.

Don-Willett-Article-201609221145

The benefits to judges having a social media presence is certainly to make the judicial system less mysterious and to promote civic awareness of how government works. It would make the system less intimidating, since people would be able to see that judges are human. It would allow lawyers to get a feel for the personality of a judge before whom they may appear or to whom they may submit a brief. Understanding your audience as a lawyer is an important skill to persuading your listener.

On the other hand, judges having a social media presence may undermine the respect we want people to have for the judicial system. Judges inhabit power positions, and if they are seen as mixing it up on Twitter or other social platforms, it could bring disrespect to the judiciary and reflect on all judges. Perhaps some of the mystery of the courts is necessary to maintain the dignity of the courts. If judges stray from nonpolitical discourse, this could also be quite damaging to the fair and impartial image we expect from the judiciary. 

It's not just Justice Willett, many judges are on social media (and now even courts!), so reversing this trend is unlikely. (Tessa wrote here about getting Justice Willett back on Twitter since he went on hiatus once his nomination was released - he got his own hashtag #FreeWillet). But Justice Willett does provide some guidelines for how to approach social media as a judge. In an interview last year with Texas Lawyer he said this:

Texas Lawyer: As the unofficial “Tweeter Laureate of Texas,” you’ve become one of the most public members of the state judiciary. At 22,500 tweets and counting, the world knows a lot about your sense of humor, family life, sports team allegiances and political leanings. You’ve provided a rare look into the life of a judge. But by revealing so much about yourself, do you think you’ve compromised a judge’s mandate to appear neutral in all matters that may come before the court?

Justice Don Willett: A 2013 ethics opinion from the American Bar Association gives judges a thumbs-up to engage voters via social media, calling it “a valuable tool for public outreach,” but urging caution, as with anything, judges must always be judicious, whether crafting a 140-footnote opinion or a 140-character tweet. I diligently self-censor and aim for carefulness. A few cardinal rules: No discussing cases that could appear before me, and no partisan bomb-throwing. I try to keep things witty and light, regaling people with my random musings on sports, culture, parenthood, law, stuff like that. Judges on social media must be juris-prudent, always honoring our distinctive constitutional role. I take my job seriously, if not myself. The law is a majestic thing, and when citizens confer the title “Justice” on someone, they place in human hands that profound majesty.

In his confirmation hearings this week, Willett was asked whether he would give up tweeting should he be confirmed. He acknowledged that his wife would like him to stop, but that he would take it under advisement. 

Sen. John Cornyn, R-Texas, asked if Willett would keep tweeting if confirmed.

“The short answer is, I don’t know if I’ll continue tweeting,” Willett said. “I haven’t thought a lot about it, but if I do, certainly the frequency and the content would change.”

Willett said if he did tweet as a Fifth Circuit judge, he would focus on “civic education” and improving “our collective national civics IQ.”

Later, Sen. John Kennedy, R-Louisiana, asked the same question, and Willett gave a similar answer. But Kennedy expressed concern and asked that Willett consider not tweeting if confirmed. Willett promised the senator that if he did tweet, he would “post nothing that could be remotely construed as political.”

“Don’t you think the wiser course would be to just not do it?” Kennedy said. Willett said his wife agreed, and that he would think about it and get back to the senator.

It is not known when Justice Willett's nomination will be voted on, but it will be interesting to watch his reaction on Twitter! 

November 16, 2017 in Federal Appeals Courts, Humor | Permalink | Comments (0)

Thursday, November 9, 2017

Thinking Thursday: When metaphors harm

In a recently released Maryland Law Review article entitled Do Muddy Waters Shift Burdens?, Professors Carrie Sperling and Kimberly Holst walk readers through the history of what was supposed to be one of the country’s most progressive laws allowing post-conviction DNA testing for inmates whose cases did not originally involved that type of evidence. Article 64.03 in the Texas Code of Criminal Procedure created a uniform process for inmates to petition courts for testing, asking inmates to show, “a reasonable probability that he or she would not have been prosecuted or convicted if DNA testing had provided exculpatory results.”Criminal attorneys will recognize the “reasonable probability” test as a well-established standard that courts interpret as a probability that sufficiently undermines confidence in the case’s result.

Nevertheless, Texas courts have latched onto a metaphor introduced by the Texas Court of Criminal appeals a few years after the statute was enacted. That court first found ambiguity in the standard despite its years of interpretation in other contexts. Instead, that court held, the standard must be interpreted to require inmates to show, with reasonable probability, that the DNA testing would prove a convicted person’s innocence. The defendant in the case did not meet that burden, but showed only that DNA testing would “merely muddy the waters.” Despite the Texas Legislature returning to the statute to clarify its intent, Professors Sperling and Holst found that courts continue to use the metaphor as a statement of the governing rule of law.

Metaphors be with you
Doctrinal metaphors abound in our case precedents. The most famous are found in evidentiary analysis, “fruit of the poisonous tree,” and in civil procedure, “long-arm” statutes. Many doctrinal metaphors are extremely useful in helping frame our thinking about more abstract principles. But, in the situation spotlighted by these two professors, a doctrinal metaphor might be harmful or even a misstatement of the law. What should a lawyer do in that situation?

The answer lies in part in a separate article, this one published by the Mercer Law Review and republished in a monograph, written by Professor Michael Smith, Levels of Metaphor in Persuasive Writing. In that article, Professor Smith advises attorneys to challenge the metaphor directly, a strategy he calls the Cardozo Attack. Justice (then Judge) Cardozo warned other jurists that creative metaphors involved with corporate law, “piercing the corporate veil,”  should be used only very carefully and not to the exclusion of more accurate, albeit literal, language. Professor Smith’s article details two examples of successful attacks on doctrinal metaphors.

Both articles spend some time explaining the cognition of metaphor use, which is reason enough to read these two pieces. Beyond that, the articles offer an important lesson for appellate attorneys. First, we must be aware of the notion that metaphoric language is just that: a comparison of two seemingly incongruent things to help readers form connections. By themselves, doctrinal metaphors do not necessarily form the backbone of substantive law. Second, we should spend time in our lawyering process unpacking these metaphors in the event that they conflict with the actual and governing tests. In the event they do, it is incumbent upon us, as part of our client representation, to address the metaphor itself as part of a persuasive argument chain.

November 9, 2017 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (0)

Monday, October 23, 2017

Is Oral Argument Dying in the Circuits?

 

1200px-New_York_Court_of_Appeals_hearing_oral_arguments

Yes, at least according to a recent study by the American Academy of Appellate Lawyers. Jennifer posted an excellent summary of the report last Thursday.  I won't repeat her discussion, but I wanted to focus on a few other points.

The Academy, concerned with both the decline in cases listed for oral argument and the time allotted for oral argument in federal appellate courts, sent their report to Chief Justice John G. Roberts, Jr., and the chief judges of the federal appellate courts.  As Academy member James Martin told the National Law Journal, more oral argument could shed light on the role of judges: "Oral argument is a very unique piece of the civics lesson and one that I personally believe puts the courts in a very good light and is its own almost best explanation of what the third branch does and is all about."

According to the report, there are four federal circuits with oral argument rates in the teens.  The Fourth Circuit is the lowest, with only 11% of cases being scheduled for oral argument.  The D.C. Circuit, with 55% of cases being scheduled for argument, has the highest rate of oral argument.  According to the research I did along with my co-author for the third edition of Winning on Appeal, only 18.6% of federal appellate cases were scheduled for argument in 2015.  In 1990, 44.8% of cases received oral argument, with the Second Circuit granting argument in 76.4% of cases.  And, as we noted in Winning on Appeal, these numbers don't take into consideration the litigants who do not ask for oral argument in circuits that require such a request. So why the decline?

Some of the decline can be attributed to the rise in cases appealed.  In 1969 the federal appellate courts terminated 9,014 appeals. In 2015, that number was 52,881, or an increase of 586%.  It would be incredibly difficult for judges to hear argument in every case given the large number of appeals.  Furthermore, in surveying judges for Winning on Appeal, we found that most judges found the briefs to play a highly significant, if not dispositive, role in helping them resolve the appeal. 

Still, oral argument has its purposes.  In chapter 3 of Winning on Appeal, we set out some of these purposes.  For judges, oral argument allows them to (1) question the legal and factual positions in the briefs, (2) clarify the issues, (3) consider the impact of the positions taken, (4) lobby other members of their court, and, at times, (5) help the advocate present the case.  For attorneys, on the other hand, oral argument allows them to (1) face the decision makers, (2) emphasize or simplify positions in the brief, (3) address the issues that trouble the court, (4) correct misimpressions, and (5) show the logical soundness of their position.  In observing oral arguments, I have found that many attorneys fail to capitalize on these opportunities.  While, as Mr. Martin noted, oral argument puts judges in "a very good light," it doesn't always do the same for attorneys. Perhaps the answer to more oral argument is to ensure that the quality of oral argument is excellent and beneficial to judges and the disposition of cases.

 

October 23, 2017 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument | Permalink | Comments (1)

Thursday, September 7, 2017

Judge Posner - A Very Memorable Jurist!

As Tessa wrote earlier this week, Judge Posner, a staple of the Seventh Circuit Court of Appeal, surprised more than a few folks when he announced his immediate retirement this week. 

The influential Chicago judge [is] known for his wit, no-nonsense writing style and his provocative commentary on law, politics and society—which he offered both on and off the bench. Unlike most federal judges, Posner gave interviews and rarely held back—even when the topic was the U.S. Supreme Court.

Judge Posner is 78, and plans to descend the bench by this Saturday. He was appointed by Ronald Reagan in 1981 and served as chief judge from 1993-2000.

I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” Posner said in a statement. He noted that he had written more than 3,300 opinions during this time on the bench.

He said he looks forward to teaching and publishing “with a particular focus on social justice reform.”

As a few notable jurists before him, Judge Posner stands out through his clear prose and frequently humorous writing. He was not a fan of the Bluebook - which depending on who you talk to could be seen as heresy within the profession:

“At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook.”

Nor was he a fan of the class action lawsuit:

    “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Ostrich Lawyer

He made quite a stir with his ostrich opinion (the lawyer in the case didn't think it was very funny, or befitting of a legal opinion):

"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in a November 2011 ruling that featured an illustration of a man in a suit burying his head in the sand.

Judge Posner's blunt writing style might be held up against Justice Scalia's - not really for their similarity, but for their ability to make readers take notice. Judge Posner made waves when he criticized Scalia for seemingly undermining his staunch aversion to allowing legislative history to creep into his interpretation in Heller:

“[Antonin] Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”

Judge Posner's humor, banter, and incisive writing will certainly be missed. Congratulations on to him on such a monumental career as a jurist and here's to many more years of being an influential force in the legal profession. 

September 7, 2017 in Federal Appeals Courts | Permalink | Comments (0)

Monday, August 7, 2017

Making a Murderer Dassey Case Headed to En Banc 7th Circuit

Somehow I missed this news last week, but the Seventh Circuit has announced that it will rehear, en banc, the case Dassey v. Dittman.  If you watched the Netflix documentary "Making a Murder," you were probably shocked by Brendan Dassey's conviction, which certainly appeared coerced.  

A split panel of the Seventh Circuit had upheld the district court's decision overturning Dassey's conviction.  Now the whole Seventh Circuit will have a chance to opine.  Eugene Volokh's post has some statistical information about the Seventh Circuit, including the number of judges appointed by Republican and Democratic presidents and the gender make-up of the court. Based on the actions of the panel, Prof. Volokh doesn't think that the typical stereotypes apply to this case. This is certainly a case that will attract significant media attention, so it will be interesting to see how it comes out on appeal.

August 7, 2017 in Appellate Advocacy, Current Affairs, Federal Appeals Courts, Film | Permalink | Comments (0)

Monday, July 31, 2017

Follow the Rules!

I recently received a link to a Seventh Circuit in-chambers opinion that I thought was worth sharing.  On July 10, Chief Judge Diane Wood issued an in-chambers opinion striking briefs in two cases.  The briefs, one a respondent brief from the Attorney General and the other an appellee brief from the Air Line Pilots Association, were stricken for failing to comply with court rules.  So what court rule did these parties fail to follow?  Circuit Rules 3(c)(1) and 28 on jurisdictional statements. 

This is surprising, as the briefs that were stricken were from an appellee and a respondent.  As Chief Judge Wood explains, however, appellees and respondents have responsibilities too when it comes to the jurisdictional statement.  While appellees and respondents are exempted “from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement,” Seventh Circuit Rules “direct[] that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional  summary in the appellant’s brief is complete and correct.  If it is not, the appellee shall provide a complete jurisdictional summary.’”

As the Chief Judge points out, “The job of the appellee is to review the appellant’s jurisdictional statement to see if it is both complete and correct. These terms are not synonyms.”  So where did the briefs of the Attorney General and the Air Line Pilots Association fall short?  With respect to the Attorney General’s brief, the jurisdictional statement only said that the appellant’s statement was correct, not that it was complete.  Chief Judge Wood explained, “If the Department [of Justice] concludes that Mr. Baez‐ Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief.”  As for the Air Line Pilots Association, while their statement said that the appellant’s statement was complete, but mentioned nothing about correctness.  Chief Judge Wood directed the Association to “review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, . . . supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).”

So what is the moral of this story?  Follow the rules. In both cases, the jurisdictional statements would have been perfectly acceptable if they had two additional words. Now, the parties will have to incur the costs (both in time and money) of filing amended briefs. 

Filing a brief that comports with the rules of the jurisdiction should not be such a difficult endeavor.  As Chief Judge Wood notes in her opinion, the Seventh Circuit even provides a checklist to assist litigants follow the rules.  Other legal writing books or courts provide similar lists or examples.  As lawyers, we can, and should, do better.   

July 31, 2017 in Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Monday, July 17, 2017

Should SCOTUS Justices Have a Mandatory Retirement Age?

According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate.  Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians."  Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.

The notion of a mandatory judicial retirement age is not new.  In fact, many states have such rules, although most states set the age at 70.  The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges.  Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."

Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing.  These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75.  On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.  

 

July 17, 2017 in Appellate Court Reform, Federal Appeals Courts, State Appeals Courts | Permalink | Comments (0)

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban.  There is also a case in the Ninth Circuit challenging the ban.  In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions. 

Should the Court grant certiorari in these cases?  My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.”  Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore.  Professor Blackman argues:

The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.

Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.” 

While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law.  Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore).  I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore.  Perhaps even a non-speedy decision would suffer the same fate.  At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C.  I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months.  Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.

June 19, 2017 in Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)