Appellate Advocacy Blog

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

• "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
• "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
• "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
• "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

Appellate Advocacy 101: On the Basis of Sex

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

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

Appellate Practice Is a Lot of Work

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

Oral Argument Is a Little Scary

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

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

One Case Can Be Two Different Stories

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

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

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

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

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

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

***

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best Appellate Movies

It was a snowy/icy/cold weekend in Virginia.  In fact, I saw something on Sunday that said there is snow on the ground in every state except Florida. Sounds like perfect weather for a movie.

There are several lists out there on the best legal movies, including one by JD Journal and another by the ABA Journal. Most of the greats, however, are courtroom dramas.  Think about it, To Kill a Mockingbird, A Few Good Men, My Cousin Vinny--all courtroom dramas.  

So, what are the best Appellate Legal Movies.  I have combed the lists and offer these suggestions (with help from this list by Missouri appellate attorney Jonathan Sternberg):

1.  Reversal of Fortune (1990).  This movie is on the ABA Journal list and focuses on the true story of Claus von Bulow who was accused of the attempted murder of his wife. Alan Dershowitz and a group of Harvard Law students helped with von Bulow's defense.
2. Amistad (1997).  This movie makes all of the lists and follows the 1841 case about a slavery ship uprising.
3. The People vs. Larry Flynt (1996). In addition to following the rise of Larry Flynt, this film follows the famous First Amendment case, ultimately decided by the Supreme Court, Hustler Magazine v. Falwell.
4. Bridge of Spies (2015).  Sternberg had this movie on his list.  I had forgotten that the movie briefly covered Rudolf Abel's appeal to the U.S. Supreme Court.  This really was an interesting movie, even though the legal aspect was pretty minor.
5. The Pelican Brief (1992). Every legal movie/book list needs to include at least one John Grisham book.  This is a great film that qualifies under the appellate category given the fact that it involves the murder of Supreme Court justices.

I am sure that I have missed some.  What is your favorite appellate movie?

Snow Day Inspiration: Beatrice Mtetwa and the Rule of Law

Sometimes a good snow day gives us a rare chance to slow down and reflect on life, or just to recharge our batteries (after digging out, of course). If you'd like a little professional inspiration for your teaching or that tough appeal you're working on, take a few minutes to learn about Beatrice Mtetwa, a human rights lawyer in Zimbabwe and the subject of a  new documentary by Lorie Conway, Beatrice Mtetwa and the Rule of Law.

To get acquainted with her work and story, get inspired by the short, three-minute film trailer or a longer, nine-minute trailer; visit the documentary homepage; or absorb an in-depth Q&A session hosted by the International Bar Association. 

Hat tip: The Guardian, Courage of Zimbabwe Human Rights Lawyer Captured in Film

Image: Stephen Morley (Based on File:BlankMap-Africa.svg) [CC0], via Wikimedia Commons ("A map of Africa showing countries' scores on the Safety and Rule of Law category of the Ibrahim Index of African Governance") 

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HBO Puts a Spin on Clay v. United States

If you subscribe to HBO, you might find Muhammad Ali's Greatest Fight a very interesting movie to watch.  Besides the fact that it chronicles, in part, the sometimes politically-controversial boxing career of Cassius Clay Muhammad Ali,  it takes a look inside the deliberations behind Ali's court fight against being drafted into to U.S. Military.  

The case Clay v. United States begins with Clay losing an administrative appeal.  While Clay argued that he met one or more elements of the 3-part test (1. that he is conscientiously opposed to war in any form, 2. that this opposition is based upon religious training and belief, and 3. that this objection is sincere) used to determine whether an individual's objection to being drafted is afforded religious freedom protection, the Justice Department, then headed by Solicitor General Thurgood Marshall, believed that his objection was rooted in political rather than religious ideology.   As such, he was tried and convicted of willfully refusing to be drafted.  After losing on appeal, the case finds its way to the Supreme Court.

By the time the case arrives on the Court's doorsteps, Thurgood Marshall is now a Justice and, due to his involvement at the beginning of the case, recuses himself.  The movie uses this as an opportunity to showcase Justice Marshall as a proponent of integration and a believer that Muhammad Ali is promoting a segregationist agenda as a member of the Nation of Islam (black Muslims).  

The movie also dramatizes the inner workings of the Supreme Court.  The movie follows a seemingly fictional and liberal-minded law clerk championing the Court's consideration of hearing the Clay case.  The law clerk, from Missouri Law, is met with opposition from not just John Harlan, the Justice supervising him, but also from elitist and more conservative fellow law clerks with higher pedigrees from Harvard, Yale and Columbia Law.  

Initially there is great opposition to hearing the case, but eventually the Court agrees.  After oral argument, the Justices seem to be headed towards a 5-3 decision affirming the conviction.  However, the protagonist law clerk does some exhaustive research, finds a case that seems to mirror the premise in the Clay case but involves the Jewish faith, and then approaches Justice Harlan with a draft of an opinion in favor of Clay - regardless of the 5-3 decision and the fact that John Harlan had charged the law clerk with drafting an opinion against Clay.  After looking at the possible racial impact of a decision against Clay and the Muslim religion when the facts seem to suggest that his conscientious objector argument should be successful, the Justices eventually reverse course and come to terms on how to carry out issuing an 8-0 decision.  The last twist to the movie chronicles how they crafted the decision so that it would not create precedent, but would be narrowly construed to the facts presented.  Specifically, since the Appeals Board issued its decision without clearly articulating the grounds for the decision (which elements of the conscientious objector test Clay failed to meet), the Court ruled that such an ambiguous conviction could not stand.  

The movie is interesting in how it shows the "case behind the case."  Watching the deliberations of the Justices, the jockeying of the law clerks and their role in influencing the minds on the Court, and the politics that came into play in what should be a non-political judicial branch was fascinating.  It really makes one think about the fact that advocates need to focus on not just persuading the panel of neutrals, but also must keep an eye towards how to influence the law clerks and the other people with political, social, or other interests in the case outcome.  

If you get the opportunity, do take time to watch this movie.  It will be time well spent.

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