Appellate Advocacy Blog

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

Sunday, February 23, 2020

When Drafting a Brief or Preparing for an Oral Argument, How Do You Know When to Stop Researching?

One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”

This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.

To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.

1.    Identify the appropriate scope of your research

Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent.  When making this determination, ask yourself the following questions:

  • Is your case in state or federal court?
  • Does your case involve a state or federal issue?
  • Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
  • Are you arguing for a correction in a lower court's decision or an expansion of the law?
  • Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?

For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts. 

You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.

Importantly, the above advice applies to cases where you are arguing for a correction in the law.

If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.

Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.

Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.

2.    Look for repetition

You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently.  Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.

You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.

3.    Review the cases in your opponent’s brief

You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.

4.    Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue

To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.

5.    Identify the cases cited by courts in prior decisions

You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.

6.    Research the subsequent history of the cases you cite in your brief

Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.

The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.

February 23, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (0)

Tuesday, February 18, 2020

Reasonable Sources on Appeal

Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.

One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes,  and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?

The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive.[1] The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups.[2] The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.[3]

This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?

Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry.  Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.

 

[1] United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).

[2] United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

[3] See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).

February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, February 16, 2020

Resolving the Tension Between Religious Liberty and Equality

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs.[1] By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs.[2] The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.

Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?

In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing.[3] Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.

The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases.[4] To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”[5]

Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests.[6] The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.

First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[7]

Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”[8]

Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion.[9] As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[10]

Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices.[11] Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”[12] The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.[13]

In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest.[14] However, in City of Boerne, the Court held that the Act does not apply to the states.[15] Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.

Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”[16] However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.

If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.

As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.

[1] 138 S. Ct. 1719 (2017).

[2] See id.

[3] See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”). 

[4] U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).

[5] 521 U.S. 507, 564-65 (1997).

[6] See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).

[7] 98 U.S. 145, 166 (1878).

[8] 485 U.S. 439 (1988).

[9] 508 U.S. 520 (1993).

[10] Id. at 547.

[11] 494 U.S. 872 (1990).

[12] Id. at 878.

[13] 374 U.S. 398 (1963).

[14] 42 U.S.C. § 2000bb-1(a)(2012).

[15] 521 U.S. 507.

[16] 138 S. Ct. 1719 (2017).

February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, February 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, February 14, 2020

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News:

  • Texas has petitioned the Supreme Court to declare a California interstate travel-ban unconstitutional. The travel ban prohibits state-funded travel to states that fail to provide sufficient protections for LGBTQ people. Texas was added to the list of banned states in 2017 because of a Texas law allowing foster care agencies to use sincerely held religious beliefs as a basis to deny placements to gay couples. Texas argues that the ban violates the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. See the State of Texas filing. Reports are available from The Texas Tribune and Fox News and by Josh Blackman at The Volokh Conspiracy.

  • The Supreme Court issued a memorandum formalizing some previously unwritten procedural  rules.  This memorandum discusses rules on scheduling private conferences and deadlines for petitions for certiorari.  Bloomberg Law has this report on the memorandum.  

  • Adam Feldman has posted “About this Term: OT 2019” at his Empirical SCOTUS blog.

  • In Supreme Court historical news, Christopher Brooks wrote an online essay about the first black man allowed to argue before the Supreme Court. And the Harvard Law School Library has released some of the papers of Justice Antonin Scalia. Harvard Law Today reported here.

Federal Appellate Court Opinions and News:

  • The Court of Appeals for the DC Circuit threw out the emoluments claim against the president brought by 215 members of Congress. The DC Circuit applied Supreme Court precedent from House of Delegates v. Bethune-Hill (2019) and Raines v. Byrd (1997), holding that “’individual members’ of the Congress ‘lack standing to assert the institutional interests of a legislature.’” The order reversed a lower court holding that the members had standing. The order is here. The many reports on this ruling include those from The New York Times , The Washington Post, The Wall Street Journal, The Hill, and Politico.  

  • The Third Circuit ruled in favor of Philadelphia, finding that the city can prohibit an employer's asking an applicant about salary history. The ruling was welcomed by wage-equity proponents, who claim the law could reduce gender- and race-based wage discrimination.  See reports from the National Law Review and the Philadelphia Inquirer and an essay about the equal pay implications by Professor Joanna L. Grossman. The ruling is here.

  • After ruling that Arizona’s “ballot harvesting” law discriminates against minority voters (see The Weekly Round Up, January 31), the Ninth Circuit granted Arizona’s request to stay the ruling so that Arizona may seek Supreme Court review. The stay means that the law will remain in effect at least through the presidential primary in March. See report in the Arizona Daily Star and AP News.  

  • The Ninth Circuit upheld the dismissal of a lawsuit that argued that an Oregon school district policy violated the Constitution and civil rights law by allowing a transgender student to use bathrooms and locker rooms that match their gender identity. The court found that the policy did not violate the rights to cisgender students or their parents and dismissed the case. See reports from KATU News, Bloomberg (subscription required), and the ACLU.  The ruling is here.

  • Brooklyn Federal Judge Jack Weinstein, the longest-serving federal judge in the country, has retired after a 53-year career.  See The New York Daily News report.

 

February 14, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, February 2, 2020

Don’t Make These Mistakes When Writing An Appellate Brief

When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.

1.    You fail to follow the local court rules

The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.

2.    You seek a remedy that is outside of the court’s authority

When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).

Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.

You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.

Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.

3.    You overstate the relevance of precedent

Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.

Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.

4.    You are not direct with the court

Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:

  • Identify the errors in the lower court’s decision
  • State the remedy that you would like the court to provide
  • Explain why you are entitled to this remedy
  • Briefly provide the facts and relevant law that support your position

If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.

5.    You do not consider the relevant standard of review

Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.

Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.

6.    You do not organize your brief effectively

Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:

  • Headings and subheadings that are rarely, if ever, longer than one sentence
  • A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
  • Paragraphs that only discuss a single point or issue and that always begin with a topic sentence

If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).

7.    You file an unnecessarily lengthy brief

Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.

Simply put, less is often more.

8.    You make basic writing or stylistic errors

Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:

  • Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
  • Use block quotes unless absolutely necessary
  • Include overly long paragraphs
  • Repeat arguments
  • Use complex or esoteric words

Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.

February 2, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, February 1, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 31, 2020

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News:

  • This week, the Supreme Court granted, without much explanation, the petition to stay an injunction that had prevented the implementation of the Justice Department’s income-based restrictions on immigration. The ruling allows the administration, in the consideration of green card applications, to base decisions on whether the applicant is likely to need public assistance, including public benefits like Medicaid, food stamps, and housing vouchers. The bulk of the opinion is Justice Gorsuch’s concurrence, which focuses on “[t]he real problem here” described as “the increasingly common practice of trial courts ordering relief that transcends the cases before them.” See reports in New York Times, Washington Post, and Associated Press.

  • A documentary on Clarence Thomas is being screened across the country this month. “Created Equal: Clarence Thomas in His Own Words” is reviewed and discussed in The Washington Post and The National Review. A trailer is available on YouTube.

Federal Appellate Court Opinions and News:

  • The Ninth Circuit ruled this week that Arizona’s “ballet harvesting” law discriminates against minority voters. The court reversed a lower court’s findings in favor of Arizona on all counts and stated that Arizona’s laws “have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona” and that the laws were “enacted with discriminatory intent.” See decision here. See reports by The Arizona Republic, The Associate Press, The Hill, and Bloomberg Law

  • Also from the Ninth Circuit, the court will permit the malicious prosecution suit against Fairbanks, Alaska, by the four men who spent eighteen years in prison for a murder they didn’t commit. The convictions of the “Fairbanks 4” were thrown out when another man confessed to the murder.  See the Courthouse News Service report and the opinion

  • The Eighth Circuit upheld an injunction blocking an Arkansas campaign contribution law. The court ruled that the law, which prohibits contributions to a campaign until two years before election day, is likely unconstitutional.  The decision is here. See reports from Bloomberg Law (requires subscription) and the Arkansas Democrat-Gazette.

  • The DC Circuit reversed the dismissal of a First Amendment challenge to “FOSTA,” an anti-sex trafficking bill. The dismissal was based on subject-matter jurisdiction, finding that the petitioners lacked standing.  The DC Circuit decision reversed and remanded, finding that at least two petitioners had established standing. See article here.  

  • A Sixth Circuit ruling will permit an expelled med-school student to sue for defamation. The student alleges that her professor fabricated a test-cheating story after she rebuffed his advances. See decision and report from Bloomberg Law.

Appellate Practice Advice

A recent Twitter question prompted a thread providing advice for appellate advocacy “newbies.” The thread included a link to a useful 2016 post by Steven Klepper on building an appellate practice.

February 1, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, January 29, 2020

Preserving Evidence for the Record on Appeal

    The record on appeal includes “original papers and exhibits filed in the district court,” a “transcript of the proceedings” from the district court, and a “certified copy of the docket entries.”1 Appellate courts across the country have similar rules. The trial lawyer works hard to present evidence to support the client’s case. The lawyer also works hard to create and present effective demonstrative evidence. Charts printed on large boards may be used to display data and other information supporting witness testimony. Physical models may represent a forest or the seabed and be used by an expert to explain testimony about run off or contamination. And more and more often, in place of these physical charts and models, electronic presentations may be used to demonstrate this information. A witness may testify while reviewing a video of a surgery or other procedure. Models may be shown electronically, the advantage being that the models can be quickly modified or added to as a person is testifying to demonstrate the testimony. These are all effective ways of delivering information to the jury and the court.
    One of the challenges for the lawyer after trying a case with demonstrative evidence includes ensuring that these exhibits, essential to the case at trial, are accessible in forms such that they can be easily transferred to and reviewed by an appellate court, should there be an appeal. Appellate courts prefer to review information in electronic form or paper form; bulky exhibits will not ordinarily be part of the appellate court’s review.2 Thus, the trial lawyer should consider photographing bulky exhibits and entering such photographs into the record so that they can be considered by the appellate court. Information presented electronically should also be included in the record, either by printing and introducing the information in its paper form or by ensuring that the electronic version is preserved either on a flash drive or in an electronic record or transcript created by the court reporter. If the electronic exhibits are manipulated or otherwise changed as part of the testimony, the lawyer must be sure that all versions of what is presented are captured for the record.
    As technology evolves, lawyers need to adapt to ensure that their exhibits are in forms and on media that will be accessible to the appellate courts. Lawyers must also ensure that all exhibits are properly identified in the record and that the record is clear about which exhibits were entered and not entered into evidence. Lawyers must abide by procedural rules and local court rules regarding these issues, of course. Moreover, they must think and act strategically to guarantee that their exhibits will be considered by the trial and the appellate courts. Lawyers should not rely on court staff to manage this information.

1 Fed. R. App. P. 10(a).

2Id. 11(b)(2).

January 29, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Monday, January 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 17, 2020

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Apologies for the late MLK day weekend post! 

US Supreme Court Opinions and News:

  • The Supreme Court has ordered quick briefing on the Obamacare challenge after nineteen states asked for a quick decision. Recently, the Fifth Circuit held that the individual mandate is unconstitutional but remanded the issue of severability, thus leaving the law in place for now. See report from The Hill and NBC.

  • The court has also agreed to hear (1) an administration appeal seeking to enforce federal law that would allow employers to get a religious exemption from the Obamacare requirement that health insurance cover a woman’s birth control (see report) and (2) a dispute involving whether Electoral College electors can break their pledges and support the popular vote winner (see report).

  • The Court refused to hear an appeal from three “Free the Nipple” activists after a New Hampshire city fined them for exposing their breasts in public. The appeal argued that banning female but not male toplessness is unconstitutional discrimination based on gender; the Supreme Court’s refusal to hear the case leaves the ban in place. See reports in NYPost, The Hill, and NYTimes

Federal Appellate Court Opinions and News:

  • The Seventh Circuit affirmed (after nearly 3 years) the lower court decision that required Indiana to list on birth certificates both mothers in same-sex marriages. The court held that after Supreme Court cases Obergefell v. Hodges and Pavan v. Smith, “a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” See decision at 7-8. The court ruled that the Indiana Code did just that and ruled that its operation was properly enjoined.  See reports from the Indiana Lawyer, BloombergLaw, and Slate.

  • The Eleventh Circuit upheld ex-US Representative Corrine Brown’s fraud conviction. The court rejected the argument that the trial court wrongfully removed a juror who claimed guidance from the “holy spirit” as to Brown’s innocence.  See the opinion and Florida Times-Union report.

  • The Fourth Circuit upheld an injunction barring the discharge of HIV-positive service members. The decision calls the rationale for not deploying HIV-positive service members “outmoded and at odds with current science.” See opinion and reports in The Washington Post and the AP.

  • Finally, the Fifth Circuit made headlines after a divided panel denied a trans-inmate’s request for the court to use female pronouns. See opinion and dissent (begins p. 12) and report from Washington Blade.

State Court news

The San Diego Superior Court tentatively awarded nearly $13 million to twenty-two women in a suit arguing that the women were exploited by porn producers.  The ruling holds that the women had been tricked into performing in pornographic videos and found the owners of the adult website liable for fraud and breach of contract.  See report in NYTimes, San Diego Union-Tribune, and RollingStone.

January 20, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, January 3, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 2020

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Happy New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

  • Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

  • The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.

  • The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
  • Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here

Federal Appellate Court Opinions and News:

  • The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.

  • The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.

  • The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.

  • Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

January 3, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, December 20, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 20, 2019

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

A short post this penultimate week of 2019, crafted between grading final papers and sharing the winter break with family. 

US Supreme Court Opinions and News:

  • The Supreme Court won’t hear the challenge to the Kentucky abortion ultrasound law. The law requires women seeking abortions be given ultrasounds and requires doctors to describe the ultrasounds to the women. Doctors argued that the law violated the First Amendment. The decision leaves the law in place. See reports from NYT, Washington Post, and AP.
  • As a follow-up to the previous posts following this issue: the Supreme Court refused the Justice Department’s request to stay the DC District Court order that blocked four federal executions.  The Court recognized that “it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.” See order here.
  • The Court also will not hear the appeal of the Ninth Circuit decision protecting the homeless who sleep on sidewalks, leaving that protection in place. As this column noted previously, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.  The Ninth Circuit noted that “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” See reports from Washington Post and Reuters.

Federal Appellate Court Opinions and News:

  • This week, the Fifth Circuit ruled on the constitutionality of the Affordable Care Act, holding that the individual mandate is unconstitutional but remanding the issue of severability; thus leaving the law intact for now.  See reports from CNBC, Washington Post, and NYT.
  • The Second Circuit ruled last week that, in limited circumstances, landlords can be liable for one tenant’s racial harassment of another tenant. The decision holds that, under the Fair Housing Act, landlords can be liable if they fail to address tenant-on-tenant race discrimination in the building.  See report from AP and Court House News.
  • The Court of Appeals for the DC Circuit rules that the FDA can regulate e-cigarettes just like conventional cigarettes in this December 10 decision.  The decision recognizes that e-cigarettes are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” See Washington Post report here.
  • According to the District Court for District of Utah, American Samoans are citizens at birth, not non-citizen nationals. See order and CNN coverage.

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

Sunday, December 15, 2019

Writing an Outstanding Appellate Brief

The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.

1.    Frame the issue to maximize the persuasiveness of your argument

One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:

“The case involves whether the Appellee is liable for negligence”

                                                            versus

“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”

The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.

2.    Simplify the issue and argument

Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.

3.    Have an outstanding introduction

An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:

  • Draft a powerful opening sentence that explains why you should prevail
  • Tell the court exactly what you want (i.e., the remedy you seek)
  • Briefly present the most persuasive facts and legal authority that support your position
  • Include a theme that connects all of your arguments

Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.

4.    Tell a story

Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.

5.    Don’t argue the facts (unless absolutely necessary)

Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.

6.    Know the standard of review

Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.

7.    Be honest and acknowledge unfavorable law and facts

Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.

8.    Only present strong legal arguments

Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.

9.    Write, re-write, and edit your brief

Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.

10.    Don’t overwhelm the court with needless legal authority

Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.

11.    Don’t use boilerplate conclusions

Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek

12.    Put yourself in the adversary’s and court’s shoes

When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.

13.    Read great appellate briefs

If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

December 15, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, December 14, 2019

This Holiday Season, All Our Appellate Courts Want Is Good, Civil Writing

In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing.  While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.

The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained:  “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.”  942 F.3d 783, 792 (7th Cir. 2019).  For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog.  https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.

The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility.  Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics.  See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012).  In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law.  658 F.3d at 797-800.  According to Judge Sykes, who also authored McCurry:  “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.”  Stanard, 658 F.3d at 798.   Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in StanardId. at 800-02.

For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise.  I also use the case to show how lack of civility to the court and others inhibits persuasion. 

Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive.  On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”  See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).

Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts.  2019 WL 6242111, *2-4.   In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings.  Id.  After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining:  “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”  Id. at *4.   

This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil.  Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”  Id. at *4.  When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id.  Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.”  Id.  According to the court:  “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”  The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender.  Id. at *5.  As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.”  Id.

The court ended its opinion:  “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.”  Id  According to Briganti,  good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.”  Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.”  Id.

Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal.  MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist:  Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019).  While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past.  Id.

Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions.  And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful.  Happy holidays!

December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Friday, December 6, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 6, 2019

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

US Supreme Court Opinions and News:

  • A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week.  See more from CNN and Reuters.
  • After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
  • This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot.  See NYT OpEd here.
  • The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.

Federal Appellate Court Opinions and News:

  • A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association.  See NYTimes article here.
  • The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida.  See AJC article here

State Appeals Court News

  • The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign.  The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word.  See ABA Journal story here.

 

December 6, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, November 30, 2019

Advice for Drafting Amicus Briefs in Cases Pending Before the United States Supreme Court

The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?

1.    Good amicus briefs make original arguments.

Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?

You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:

Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.[1]

This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?

Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.

2.    Attract the Court’s attention at the beginning of the amicus brief.

Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.

Indeed, interviews with former Supreme Court clerks confirm this fact:

To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.[2]

Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.

3.     Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).

Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.

4.    Use social science data to support your arguments.

Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:

Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.[3]

For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.

5.     Focus on specialized areas of the law.

Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[4]

Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.

6.    Remember that your goal is to assist the Court in reaching a fair decision.

Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.

7.    Ensure that your writing is of the highest quality.

An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.

Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.

Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.

[1] Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).

[2] Id.

[3] Id.

[4] Id.

November 30, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 27, 2019

Valuing Precedent

Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts.[1]  When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances.  As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.”[2]  In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable.  Acting in this manner seems fair to everyone and keeps people we deal with content.  When we act differently, we call it a surprise, which can be a good thing or a bad thing.

 Courts use prior decisions or precedents in much the same way, as models for later decisions.  Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction.[3]  Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not.  Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors.[4]  Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges. 

Courts around the world consider precedent in varying degrees.  We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.

Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues.  Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable.[5]  In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given.  One decision alone is said to make law that must be followed in subsequent cases.[6]

On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law.  A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight.  These decisions do not bind the court to a particular interpretation of the law, nor do they make law.  In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.[7]

The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.

Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct.  For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis.[8]  The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions.[9]  Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts.  Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake.[10]  The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:

Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process.  Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.  Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.  Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.[11]

American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied.  United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant.[12]  He explained, “[S]tare decisis is not an end in itself.  It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”[13]

Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law.  In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision.[14]  Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law.[15]  The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions.  These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past.  Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.[16] 

 

[1] The author has published articles on the value of precedent and a book chapter that addresses the topic.  This post draws directly from those publications.  See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

     [2]. Interpreting Precedents: A Comparative Study 1 (D. Neil MacCormick & Robert S. Summers eds., 1997).

     [3]. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).

     [4]. Deborah G. Hankinson, Stable, Predictable, and Faithful to Precedent: The Value of Precedent in Uncertain Times

http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).

     [5]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts).  See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).

     [6]. Rubin, supra note 5, at 1371.

     [7]. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”).  But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).

 

     [8]. Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 71, 74, 86-88 (2006).

     [9]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998).  The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53.  See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”). 

   [10]. Citizens United v. Fed. Election Comm’n, 130 S. Ct 876, 911-12 (2010).

   [11]. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).

   [12]. Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring).

   [13]. Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

   [14]. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).

[15] La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).

[16] I have referred to this behavior as “systemic respect for jurisprudence.”  Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.

November 27, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, United States Supreme Court | Permalink | Comments (1)

Thursday, November 21, 2019

Transparency in the Federal Appellate Courts

Via SCOTUSBlog, I just discovered Fix the Court, an advocacy group that is a self-proclaimed watchdog for the highest court in our land. The group recently released a report in which it assesses the transparency of the federal courts, and it found that the Supreme Court comes in dead last.

The categories of assessment were broadcast access, availability of oral arguments calendars and new opinions, communications with the public, and work place conduct (including conflicts of interest) and judicial wellness. After rating all the federal circuit courts and the Court, Fix the Court scored the Ninth Circuit the highest, then the D.C. Circuit, with a tie between Third and Fifth Circuit, and then screaming in at fourteenth place was the Supreme Court. 

For the Supreme Court, broadcast availability has been a matter of interest over the years. To date, the Court has not seemed too serious about considering the addition of these capabilities because of a concern that there will be interference with the judicial process.  Widespread public viewing could improperly cause all involved (lawyers and justices) to play for a different audience than simply those present in the courtroom at the time, and further politicize a body that must remain far away from politics.

It's legitimate concern, but time moves on, as does technology. Broadcasting could be minimally intrusive, and a process that is well ensconced in tradition but removed from significant from public viewing might be made more open and thereby trustworthy to the population. Due to the lightening speed spread of news, it could be (a slight) step ahead of the inevitable if cameras were finally let into the Court. 

November 21, 2019 in Federal Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

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)

Friday, November 8, 2019

The Weekly Roundup

 

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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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
  • The court has released the January calendar, which begins on January 13, 2020.
  • A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).

Federal Appellate Court Opinions and News:

  • The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
  • An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.

Final Tidbit

The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial.  Law360 article here.

November 8, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | 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)