Appellate Advocacy Blog

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

Tuesday, June 18, 2024

Neurodiversity and Legal Advocacy: Dyslexia

Brain bias

This is part two of my continuing series of posts about neurodiversity and legal advocacy. In today's post, I'll talk about my own neurodiversity - dyslexia. While each type of neurodiversity presents differently, I hope some of my personal experience and research can help you as either a teacher, partner, or mentor when you encounter dyslexic students or associates. If you are dyslexic yourself, the following may help you process your differences and see how they can be turned into strengths.

Studies estimate that from 10-20% of the population has dyslexia. Dyslexia involves a series of genetic, neurological differences that result in a different way of seeing the world. Given the prevalence of dyslexia, it is likely that you have taught or work with dyslexic thinkers.

1.    Strengths

Although traditionally seen as a disability, Richard Branson considers dyslexia to be his superpower, and several companies now hire dyslexic thinkers purposefully because of their strengths. Indeed, LinkedIn now includes "dyslexic thinking" as a skill. Those strengths include:

    A.     Big Picture Thinking

Most dyslexics see themselves as "big picture thinkers." They see trends and patterns in data more quickly than neurotypicals. This permits them to see how things connect in complex systems, categorize broadly based on similarities, and, conversely, quickly spot things that are out of place. The GCHQ, a British intelligence and security agency, employs over 100 dyslexic thinkers to assist in their analysis for this reason.

    B.     Problem Solving

Dyslexics tend to score very high in reasoning skills. Their big-picture view of the world helps them understand patterns and systems quickly, and they can then simplify those complex systems. They are logical and strategic thinkers. In the legal world, this means dyslexics may be able to see legal solutions based on prior precedent a bit more clearly -- once they understand the purpose and policy behind prior precedent, they can extrapolate it to newer areas quickly.

    C.     Creativity

Picasso, Pollack, Spielberg, Einstein and Roald Dahl were all dyslexic thinkers. That doesn't mean all dyslexics are artists, but most do see the world a bit differently, and process and explore it differently as well.

    D.     Empathy

Whether a function of their "big picture" thinking, their experiences in coping with difficulties in reading and writing, or both, dyslexic thinkers score high in empathy. They typically sense, understand, and respond to other people's feelings more quickly and accurately than neurotypical people.

    E.     Spatial Reasoning

When dyslexic children learn to read, the right hemisphere of their brain lights up on MRIs. Neurotypical children usually do not have the same response. This is hypothesized to be because the dyslexic brain tends to use spatial reasoning for everything, including reading. Rather than just hearing and assigning sounds to letters, the dyslexic child seems to create patterns and "shapes" for each word. This spatial reasoning persists in dyslexic thinking, with dyslexics often scoring highly on spatial reasoning and 3D imagination. This may be why they can be strong theoretical mathematicians, but still make sequential errors (they see the forests but miss the trees).

    F.     Communication

When these strengths are combined, they can make dyslexics excellent communicators. Big-picture thinking, empathy, and creativity mean that dyslexics can be strong narrative story-tellers. And Walter Fisher's narrative paradigm of communications suggests that this makes them more persuasive.

2.     Challenges and coping mechanisms

Of course, being dyslexic isn't always wonderful. Dyslexia was categorized as a disability for a reason - it carries with it significant challenges. People with dyslexia are sometimes described as being neurologically "spiky," with scores both higher and lower than the neurotypical (as that name would suggest). While building on the strengths listed above, the dyslexic thinker needs to recognize those challenges. Fortunately, there are numerous aids in helping them do so.

    A.     Organization.

Big picture thinkers need to learn to break things down into steps. While it is useful to see the forest, the trees still matter in the law. Brian Garner's "madman, architect, carpenter, judge" process is extremely helpful to me. I love the exploration of research (another dyslexic trait) but feel constrained by early organization. Using Garner's process, I naturally compose my big picture argument, use the law I find to create structure, then build and rebuild the argument.

    B.     Spelling and Grammar.

Spelling and grammar are most dyslexic thinkers' kryptonite. Yet most rubrics weigh them heavily, both because they matter and because they are easy to grade. This frankly inequitable bias has to be addressed, because it will impact them professionally. But it can't paralyze the writer.

I once had the privilege of spending an evening talking with Ray Bradbury. His primary writing advice? "Write the damn thing!" Dyslexics need to get a draft on paper without fear of failure. That may mean speech to text software. It may mean cut and pasting blocks of text from cases first, then revising later. But getting something on the page is what matters.

Then revise, revise, revise. Word has learning tools that are thoroughly explored in the website listed below. AI could also be used to help. But the main emphasis for a dyslexic writer should be that good writing is rewriting, even for neurotypical writers, but especially for dyslexic writers. A second set of eyes is also highly recommended. My wife, a history professor, reads almost everything I write. Including these blogs. If you aren't blessed with a wife with good grammar skills and the patience of Job, you probably have a paralegal, legal secretary, or co-worker who does.

    C.     Instructions.

Because dyslexics are big-picture thinkers, and because they often have some decoding lag-time, giving them instructions can be tricky. Rather than just telling students to "write a memo," the dyslexic student may need the necessary steps broken down for them. And they benefit greatly from iterative learning - letting them edit and rewrite assignments is a huge boost both in learning and emotional impact.

    D.    Short-Term and Working Memory.

Several studies have shown that dyslexic thinkers can have difficulty with both short-term and working memory. Working memory is a subset of short-term memory that involves remembering sequential steps, planning, and behavioral related decision making. We forget our keys and people's names and phone numbers with alarming regularity.

One of my coping mechanisms is to write things down immediately. If I am researching and have a thought, I write it down quickly. If I have a text or notification come through, it will probably disappear if I do not. I do the same at oral argument - I furiously write down questions and statements that I need to address and draw arrows and write numbers to organize them. Once I have done that, I am locked in, because I can visualize the new argument.

There are several strategies to look into: color association, chunking, visualization, and mnemonics are all useful. As is technology. Calendaring and note apps are a part of everyday life for me and most dyslexics.

    E.     Managing Emotional Impact.

Being a dyslexic student, or advocate, isn't easy. Issues with memory, organization, and difficulty grasping instructions quickly are all anxiety-inducing. Reading -- a huge part of our day -- is draining because of the additional decoding that must take place. Text-to-speech readers may be helpful. Extra time accommodations aren't necessarily an advantage to such students, so much as a way to help level the field. But making sure their strengths are valued is also key. Hopefully, a strength-based approach to your interactions with these students will help them see the value in their differences.

3.     Conclusion

Dyslexia makes me a better advocate, but only because I've learned to capitalize on its strengths and cope with its weaknesses. Hopefully you can help your students, associates, or yourself do the same by following some of these tips.

 

Further Reading

Made by Dyslexia - Website with tests, instructional videos, and teaching tools

Taylor, H and Vestergaard MD: 'Developmental Dyslexia: Disorder or Specialization in Exploration?' Frontiers in Psychology (June 2022).

 

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

June 18, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Oral Argument, Rhetoric, Science | Permalink | Comments (0)

Saturday, June 8, 2024

Will Former President Donald Trump’s Conviction Be Overturned?

On May 30, 2024, a Manhattan jury convicted former President Donald Trump of falsifying business records with the intent to defraud voters in the 2020 election. The conviction involves, among other things, a non-disclosure agreement that adult film actress Stormy Daniels signed in 2016, which prohibited Daniels from discussing the alleged sexual conduct that, in 2006, occurred with her and Trump.

After the sentencing hearing, which is scheduled for July 11, 2024, Trump’s attorneys will file an appeal seeking to overturn the decision. Below is a brief discussion of the issues that Trump’s attorneys will likely raise on appeal, and a prediction of whether they will be successful.

    1.    The failure to remove Judge Merchan from the case.

Judge Merchan allegedly donated $15 to President Joe Biden’s 2016 election campaign and $10 to an organization called Stop Republicans. A state ethics panel subsequently cautioned Merchan against making such contributions to avoid the appearance of bias. Also, Judge Merchan’s daughter, Loren, works for Authentic Campaigns, a political marketing agency that serves Democratic political candidates, and for a time, Loren was Authentic’s president and Chief Operating Officer. Loren also allegedly displayed an image of President Trump behind bars on her Twitter page, which was later removed. Based on these facts, Trump’s attorneys requested that Judge Merchan be removed from the case. That request was denied.

Perhaps Judge Merchan should have recused himself, but whether he was legally required to do so is a different matter. Judge Merchan donated a small amount to Biden’s campaign eight years ago. Also, Loren’s job at Authentic does not mean that Judge Merchan, because of his daughter’s political activities, will be biased in the trial or have an actual or apparent conflict of interest.

            Prediction: Unsuccessful.

    2.    The failure to change venue.

To many legal scholars and commentators, President Trump faced an uphill battle in this trial because Manhattan is a decidedly liberal city where over eighty-five percent of residents voted for President Biden in 2020, and where a bias toward Trump exists. Indeed, when jury selection began, half of those called for jury duty immediately stated that they could not be impartial in their deliberations. And of the twelve jurors selected, it is highly likely that the majority voted for Biden and harbored negative feelings toward Trump. Given these facts, Trump’s attorneys argued for a venue change, which Judge Merchan denied.

However, the law did not likely require a venue change. To hold that the political orientations of the jurors justify a change in venue in every or most cases would upend the jury system and make criminal trials incredibly inefficient.  Every criminal defendant could argue that the political demographics of a county, city, or state justified a venue change. Moreover, a venue change would not guarantee that existing biases in another venue would be eliminated; also, jurors can certainly assess the facts and evidence objectively despite their political affiliations.  Simply put, it is quite speculative to assume that jurors, who take an oath to be impartial and base their decision on the facts and evidence, would yield to and convict or acquit based upon their political biases. One should have more faith in the citizens of this country.

            Prediction: Unsuccessful.

    3.    Judge Merchan’s decision to allow Stormy Daniels’ testimony.

At the trial, Stormy Daniels testified about a sexual encounter that she had with President Trump in 2006 and, in that testimony, she provided graphic details about the encounter that did not relate to any of the elements of the charges against Trump. Daniels’ testimony also contradicted her prior statements, where she denied that such an encounter ever occurred. Based on the explicit sexual details that Daniels provided in her testimony, the defense will argue that this testimony was unduly prejudicial.

But during the opening statements President Trump’s lawyer, Todd Blanche, told the jury that Trump never had a sexual encounter with Daniels, thus justifying the prosecution’s decision to call Daniels to refute this assertion, which was the alleged motive for the non-disclosure agreement. However, the graphic details to which Daniels testified, such as what President Trump was wearing, how long their sexual encounter lasted, and what sexual position he preferred (Judge Merchan sustained an objection to this part of the testimony), were unnecessary. Surprisingly, the defense did not object to certain portions of this graphic testimony, which prompted Judge Merchan to criticize the defense for not making such objections.

Regardless, as stated above, because Trump specifically denied having a sexual encounter with Daniels, the prosecution was justified in calling Daniels to refute this statement. The question on appeal, therefore, will turn on whether the lurid details that Daniels provided–and which were irrelevant to the prosecution’s case–were sufficiently prejudicial to deprive President Trump of a fair trial.

The answer is, most likely, no. The appellate courts will decide that this was a harmless error.

            Prediction: Unsuccessful.

    4.    Judge Merchan’s evidentiary rulings.

Trump’s attorneys will argue that Judge Merchan’s evidentiary rulings reflected a pro-prosecution bias throughout the trial and compromised President Trump’s right to a fair trial.

Some of the objections that Judge Merchan sustained for the prosecution were questionable. For example, the way Judge Merchan limited Robert Costello’s testimony–not to mention his hostile demeanor toward Costello, calling him contemptuous and threatening to strike his testimony–was concerning. Of course, Costello did himself no favors by acting disrespectfully when Judge Merchan sustained one of the prosecution’s objections. You would think that a lawyer of Costello’s caliber would refrain from such conduct, which severely compromised his credibility.

Additionally, Judge Merchan also restricted the testimony of former Federal Election Commission Chairman Brad Smith, who would have testified that Trump’s payments to Cohen did not constitute a campaign finance violation.  In fact, the restrictions were so significant that the defense decided not to call Smith, Furthermore, Judge Merchan allowed the prosecution to tell the jury that Cohen had pleaded guilty to a campaign finance violation – which was among the charges that Trump faced.[1] When Judge Merchan allowed this, he should have permitted Brad Smith’s testimony to refute the prosecution’s argument. Judge Merchan’s failure to do so is very problematic because it enabled the jury to think, “If Cohen pleaded guilty to a campaign finance violation, then Trump must be guilty too.”

Also, Judge Merchan’s decision regarding the permissible scope of cross-examination if Trump testified was troubling. Specifically, Judge Merchan ruled that the prosecution could ask Trump about the verdict finding him liable for defaming E. Jean Carroll, about the four-hundred-and-fifty-four-million-dollar verdict that Judge Arthur Engeron imposed in President Trump’s civil fraud trial, and about Trump’s numerous violations of Judge Merchan’s gag order. None of these questions related to the charges facing Trump, and allowing the prosecution to ask such questions was more prejudicial than probative. And these rulings played a significant role in Trump’s decision not to testify.

Judge Merchan’s decision regarding the scope of cross-examination may be problematic given the Court of Appeals of New York’s recent decision in People v. Weinstein, where the Court, by a 4-3 decision reversed the conviction against Harvey Weinstein on sexual assault charges. In that case, the Court of Appeals held that the trial court improperly allowed several women to testify that Weinstein had sexually assaulted them, even though Weinstein was not on trial for assaulting those women. As the majority stated, “[u]nder our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”[2]

To be clear, this is not to say that Judge Merchan was consciously biased against President Trump. It is to say that some of his evidentiary rulings, including when considering the Court of Appeals’ decision in Weinstein, might constitute reversible error.

            Prediction: Possibly successful.

    5.     Whether Michael Cohen’s testimony should not have been given any weight by the jury, thus justifying a directed verdict for President Trump.

Michael Cohen was not a credible witness.  He lied to Congress.  He pleaded guilty to tax evasion and bank fraud (which were unrelated to Trump), which led to his disbarment and incarceration. He lied to a federal court. He called a deceased federal judge corrupt. He secretly recorded President Trump–his client at the time–during a meeting where they discussed the payment to Daniels. He stole thousands from the Trump Organization. And he lied to or omitted material information about an October phone call with Trump’s bodyguard, Keith Schiller. Also, during his testimony, Cohen blamed his legal troubles on being “knee-deep in the cult” of President Trump, showing that he lacked any sense of personal accountability. Lest there be any doubt about Cohen’s character, watch his belligerent rants online, where he states how much he wants Trump to go to prison while wearing a shirt depicting Trump behind bars.

Cohen had about as much credibility as those claiming that the government faked the moon landing or that Elvis faked his death.

Incredibly, however, the jury believed at least some of Cohen’s testimony because Cohen was the only witness who could testify to, among other things, Trump’s specific intent to defraud voters and promote or prevent the election of any person to public office.[3]  Given that the trial occurred in Manhattan and that at least some jurors despised Trump, this should not be surprising. Moreover, although some commentators made much of the fact that there were two lawyers on the jury, this did not bode well for President Trump. One attorney, who moved to New York from Oregon, has lived in Chelsea for five years, which is notoriously liberal.  The other lawyer worked as a civil litigator at a firm in New York City, and firms in New York City are overwhelmingly liberal.

Regardless, is the jury’s reliance on Cohen’s testimony a basis to reverse the decision? No. Jurors are given wide latitude to credit or discredit the testimony of a witness, and an appellate court will not second-guess the jury’s fact-finding.

            Prediction: Unsuccessful.

    6.    The charge that Trump falsified business records.

Based on the evidence, the jury concluded that President Trump falsified business records. The facts suggested that after Stormy Daniels threatened to go public with her story, Cohen established a corporation, from which he paid $130,000 to Daniels after obtaining a home equity loan. Trump subsequently reimbursed Cohen for the money that he paid to Daniels.

President Trump’s accountant designated these payments as “legal expenses,” using a drop-down menu on a computer to make this designation. Why this designation was improper given that Trump made the reimbursement in connection with a legally enforceable non-disclosure agreement is unclear. And one can certainly question precisely how President Trump “caused” the records to be falsified—if they even constituted falsification. What’s more, the entries into the business records were made after the 2016 election. Thus, how can President Trump be found guilty of falsifying business records to promote or prevent the election of a candidate when the election is already over?

The appellate courts, however, will probably not focus on this issue because it will likely defer to the jury’s fact-finding.   

            Prediction: Unsuccessful.

    7.    Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

Judge Merchan allowed the jury to reach a non-unanimous verdict on the underlying crime(s) that elevated a misdemeanor barred by the statute of limitations into a felony.

To best explain this, consider the following examples: The crime of armed robbery typically requires a person to: (1) take the property of another; (2) without their consent; and (3) with the use of force. To obtain a conviction, all three elements must be satisfied. But the jury need not be unanimous on, for example, how the defendant used force. Some might conclude that the defendant used a gun, while others may conclude that the defendant used a knife. Unanimity on the underlying means is unnecessary if all jurors agree that the defendant used force because the use of force is the element that must be satisfied. Likewise, first-degree murder requires that the defendant: (1) intentionally; (2) kill another person. To convict, the jury must only agree that the defendant acted intentionally to cause the death of another person. It need not agree, however, on whether the defendant killed a person with a gun, a knife, or an ax.

The New York election law is different. It prohibits a candidate from: (1) promoting or preventing the election of a candidate; (2) by unlawful means. Unlike the robbery or murder examples, which specify the conduct needed to satisfy each element (e.g., the use of force), the New York law, in using the vague term “unlawful means,” does not delineate what conduct constitutes “unlawful means.” As such, the “unlawful means” element arguably permits a jury to choose among numerous crimes to convict the defendant without agreeing unanimously that the elements of any single crime were satisfied.

In President Trump’s trial, this is precisely what occurred. The prosecution stated in its closing argument that in deciding whether Trump was guilty of a second underlying crime, the jury could conclude that Trump violated campaign finance law, federal tax law, or engaged in additional falsification of business records. To make matters worse, Judge Merchan instructed the jury that they must only reach unanimity on which underlying crime was committed—not on whether the elements of any underlying crime were satisfied.[4]

In so doing, Judge Merchan permitted the jurors to convict Trump without unanimous agreement that the elements of any single crime were satisfied. Thus, if four jurors agreed that Trump was guilty of a federal campaign finance violation, four agreed that he was guilty of violating federal tax law, and four agreed that he was guilty of falsifying additional business records, Trump could be convicted. In fact, to date, we still do not know what underlying crime(s) the jury found Trump to have committed. This instruction arguably violated the United States Supreme Court’s decisions in Ramos v. Louisiana and Richardson v. United States.[5]

That instruction was a reversible error. And it may not be the only one.

By allowing the prosecution to proceed on an indictment that never specified the underlying crime that elevated the misdemeanor (falsification of business records) to a felony, the prosecution deprived President Trump of his Sixth Amendment right to know the nature of the charges that he was facing. That is precisely why, to this day, we have no idea what underlying crime the jurors reached an agreement upon.

That is the point – and the problem.

Additionally, the law upon which Trump was convicted–N.Y. Election Law 17-152–should be deemed unconstitutional because the term “unlawful means" is vague and essentially permits a jury to convict a defendant even if they do not agree on the underlying crime constituting the "unlawful means," and even if they do not agree unanimously that the underlying elements of any single crime have been satisfied.  

            Prediction: Successful.

***

One must wonder why these charges were ever brought. Convicting a former and possibly future president based on conduct occurring eighteen years ago, which involved an alleged “falsification of business records” that occurred eight years ago, is concerning. It suggests that the legal system is being weaponized against a political opponent. After all, if President Biden had engaged in this conduct, do you think that Manhattan District Attorney Alvin Bragg would have brought these charges? Of course not.

That, again, is the point – and the problem.[6]

Trump’s conviction will be overturned.

 

[1] Specifically, during its opening statement, the prosecution told the jury that “Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.” 

[2] See Peter Sterne, Why Did New York’s Highest Court Overturn Harvey Weinstein’s Conviction? (April 29, 2024), available at: Why did New York’s highest court overturn Harvey Weinstein’s conviction? - City & State New York (cityandstateny.com)

[3] See N.Y. Election Law 17-152.

[4] Consider by analogy the following law: “It shall be unlawful to physically harm a person through unlawful means.” This would allow a jury to convict a defendant even if four jurors agreed that the harm occurred through kidnapping, four others agreed that the harm occurred through assault, and four others agreed that the harm occurred through battery. In such a circumstance, the jurors would not agree unanimously that the defendant’s conduct satisfied the elements of any single crime. That should prohibit a conviction.

[5] 590 U.S. 83 (2020); 526 U.S. 813 (1999).

[6] Recently, Judge Merchan notified the parties that, on May 29, 2024, a cousin of one of the jurors allegedly posted on a social media website stating as follows: "My cousin is a juror and says Trump is getting convicted! Thank you folks for all your hard work!!!!" See Ella Lee, Trump Hush Money Judge Flags Facebook User Claiming Early Knowledge of the Verdict (May 29, 2024), available at: Trump hush money judge flags Facebook user claiming early knowledge of verdict (thehill.com)

 

June 8, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (4)

Tuesday, May 28, 2024

Neurodiversity and Legal Advocacy: Introduction


Brain bias


Neurodiversity is a relatively new term applied to the range of differences in the human brain regarding social interaction, learning, attention, mood, and other mental functions. Rather than seeing a learning difference (like dyslexia) as a disability, neurodiversity looks at that difference as a point on a continuum of human perception and function. That perspective allows us to see the diagnosis as a difference, not a deficit.

Educators are increasingly aware of certain diagnosed differences because of the accommodations offered to address them. But simply allowing for extra test time or reading software does not address the opportunities that these differences can bring to the table. See Jennifer Kindred Mitchell, Teaching to Neurodiverse Law Students, 29 NO. 2 Persp. Teaching Legal Res. & Writing 49 (2022).

I know. I was diagnosed with dyslexia at a young age. I continue to rely heavily on spelling correction and third-party editing to address my difficulties with spelling and grammar. But I have also come to realize, over the years, that I have attendant strengths that make me a better advocate. My long-term memory, attention to narrative, empathy, and spatial reasoning are different, and often stronger, than those without dyslexia.

Each student is, of course, different. Some present with clear diagnoses. Some have learned to live with, or mask, their neurodiversity without disclosure to their teachers. Awareness of the different presentations of neurodiversity helps educators identify difficulties and strengths and address them head on.

Over the next few weeks, I will address three categories of neurodiversity from a strengths-based approach so we can be better at identifying and helping students and young lawyers with those differences cultivate their strengths and cope with their difficulties. I will start with dyslexia, since that is my experience and an area of some personal study, then address ADHD and autism.

If you have experience with neurodiversity in advocacy, either as a teacher or learner, I would love to hear from you as I prepare those posts. This is a young area and I think we would be well-served by putting our heads together and learning how to better help those who see the world a bit differently.

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

May 28, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court | Permalink | Comments (1)

Sunday, May 26, 2024

Is the United States Supreme Court a Political Institution?

Public opinion of the United States Supreme Court has declined recently, with some commentators arguing that the Court is a political institution. Below is a brief analysis of why the Court is perceived as political, and how the Court can avoid this perception in the future.

A.    Is the Court a “political” institution?

When one labels the Court as a “political” institution, how is “political” being defined? For this article, “political” is defined as reaching decisions that coincide with a justice’s policy preferences. This does not mean, of course, that a decision coinciding with a justice’s policy views is inherently political, or that the justices are basing their decision on political considerations, as there may be legitimate textual or statutory bases to reach those decisions. Notwithstanding, public perception of whether the Court is acting in a political capacity is often influenced by whether the Court’s vote in particular cases split along ideological lines.

Given this definition, is the Court a political institution? Yes and no. 

To begin with, most of the Court’s cases do not involve divisive social issues. Rather, they involve issues such as choice of law provisions in maritime contracts, trademark issues, the bankruptcy code, the takings clause, and the Federal Arbitration Act. Such cases do not result in decisions that most people would consider politically motivated.  

Furthermore, the Court’s cases are often decided unanimously or by six, seven, or eight-member majorities. From 2008 to 2019, for example, the Court’s unanimous decisions ranged from thirty-six to sixty-six percent of its cases.[1] Conversely, the percentage of 5-4 decisions ranged from five to twenty-nine percent.[2] Rulings with six, seven, and eight-member majorities ranged from twenty to fifty-one percent.[3] Additionally, in 2021, the Court reached unanimous decisions in sixty-seven percent of its cases, and in 2022, the Court was unanimous in forty-eight percent of its cases.[4]

Therefore, in most cases, politics does not likely influence the Court’s decisions. As such, in most cases, are the justices basing their decisions on their political preferences? No.

***

However, this does not end the inquiry. In the relatively small number of cases that involve divisive social issues, whether the Court’s decisions were political depends on your perspective.  For example, many conservative legal scholars would consider Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges to be political decisions, because in their view they were based on an interpretation of the Fourteenth Amendment that had no basis in the Constitution’s text, and that resulted in outcomes consistent with the liberal majority’s policy views regarding contraception, abortion, and same-sex marriage. Likewise, many liberal legal scholars would consider Bush v. Gore, Dobbs v. Jackson Women’s Health, and Students For Fair Admissions v. Harvard to be political decisions because in each case, the Court’s majority was comprised of conservative justices.

The point is that, in a small number of cases, the justices’ opinions consistently reflect their political views, regardless of whether they are conservative or liberal. Thus, to the extent that the Court is perceived as a political institution, both conservative and liberal justices bear some blame. Consider the following:

  • Would Justice Elena Kagan, Justice Jackson, or Justice Sotomayor ever vote to restrict access to abortion?
  • Would Justice Thomas or Justice Alito ever vote to restrict when the death penalty can be imposed?
  • Would Justice Sotomayor and Justice Jackson ever vote to invalidate an affirmative action policy?
  • Would Justice Thomas or Justice Alito ever vote to restrict partisan gerrymandering?
  • Would Justice Kagan or Justice Sotomayor ever hold that the Constitution does not protect the right to same-sex marriage?

The answers to these questions should be obvious.

To make matters worse, when the political affiliations of the Court’s members change, the Court’s view of the Constitution – and fundamental rights – often changes. For example, for nearly fifty years, Roe v. Wade, where the Court held that the right to privacy encompasses a woman’s choice to terminate a pregnancy (in most instances), was considered settled law, particularly after the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe’s central holding. But after Justice Kavanaugh replaced Justice Kennedy, and Justice Barrett replaced Justice Ginsburg, the Court in Dobbs overturned Roe and suddenly discovered that the Constitution did not protect a right to abortion.

Why was Roe overturned? Because the Court now had more conservative than liberal members. One must wonder how the majority could not possibly realize that their decision would be perceived as purely political. The same goes for the justices who voted in Roe to find that the Constitution protects the right to terminate a pregnancy – a right found nowhere in the Constitution.

Cases such as Roe, Obergefell, and Dobbs show why the Court is perceived as a political institution and why its institutional legitimacy is affected negatively. Indeed, when the Court accepts for review cases involving issues such as abortion or the death penalty, most people know exactly how the justices will vote. They know that the justices will reach outcomes that so conveniently comport with their policy preferences. That is the reality, and even if it is not accurate, it is the perception. And perception is reality.

Additionally, conservative and liberal media commentators worsen the situation because they report on only the most controversial cases and, depending on the result that the Court reaches, promote the distorted perception that the Court is primarily a political institution. This is a recipe for undermining the Court’s legitimacy.

Ultimately, in Griswold, Roe, Obergefell, and Dobbs, were most justices basing their decisions on their political preferences? Yes.

B.    Solutions to increase public perception of the Court’s legitimacy.

Regardless of the Court’s many unanimous and super-majority decisions, its decisions in cases such as Roe and Dobbs undermined the Court’s legitimacy. Is there a solution that could help to restore that legitimacy? Below are two suggestions.

    1.    Deny certiorari unless the challenged law likely violates the Constitution’s text.

The Court should not grant certiorari unless a challenged law likely violates the Constitution’s text – not its “penumbras” or whatever unenumerated “right” that the substantive due process might invent. For example, in Citizens United v. FEC, did the First Amendment’s text clearly support the invalidation of a statute that strived to reduce the influence of money on federal elections? In Clinton v. New York, did the Presentment Clause clearly support invalidating the Line-Item Veto Act, which sought to reduce wasteful government spending? In Kennedy v. Louisiana, did the Eighth Amendment clearly prohibit the imposition of the death penalty for individuals who raped children under the age of twelve? In Roe v. Wade, did the Fourteenth Amendment clearly prohibit states from prohibiting abortion?

The answer is no.

So why did the Court decide these issues for an entire nation, often by a 5-4 vote? Your answer is as good as mine. Unless you believe that the Court should be guided by “evolving standards of decency that mark the progress of a maturing society.”[5]

When the Constitution is ambiguous and subject to alternative interpretations, the Court should not intervene. It should allow the states to resolve these issues democratically or, in the case of federal legislation, defer to the coordinate branches. When nine unelected and life-tenured judges decide an issue for an entire nation, especially by a 5-4 margin where the majority’s decision so conveniently aligns with the justices’ political beliefs, you have a recipe for disaster.

If you believe that this suggestion is unwise, consider Chief Justice Roberts’ opinion in National Federation of Independent Investors v. Sebelius and what may have motivated his decision.

    2.    Require a six-vote super-majority to overturn a lower court decision.

When the Court decides cases by a 5-4 vote, and those votes reflect little more than partisan division, that decision is likely to undermine the Court’s legitimacy. Put differently, should the law for an entire country depend on a one-vote majority at the Court, where those votes align with each justice’s policy preferences? No.

Instead, to overturn a lower court decision, the Court should be required to reach a six-vote super majority. Doing so would encourage compromise, consensus, and moderation, and lead to incremental, not drastic changes in the law. And it would prohibit a bare liberal or conservative majority from changing the law for an entire nation, particularly on divisive social issues. Indeed, had a six-vote supermajority been in effect when Dobbs was decided, abortion would still be legal until fifteen weeks of pregnancy. If a six-vote supermajority had been in effect when Citizens United was decided, money would likely not have the corruptive influence in politics that it does today.

Some might argue that this approach would prevent the Court from resolving circuit splits on matters of public importance. So what? There are many circuit splits where the Court denies certiorari, thus leaving them unresolved. We should not pretend that the Court’s responsibility is to resolve every circuit split or injustice that affects the country because the reality is quite the opposite. Furthermore, if there is a circuit split, such that the law is interpreted and applied differently in different states, why is that necessarily undesirable? This is already the norm, not the exception, and the incredibly small number of cases that the Court decides each term has only a marginal impact on that reality. And if you believe that the Court should defer to democratic choice at the state and federal level when the Constitution is ambiguous, a six-vote supermajority requirement would facilitate achieving that objective – as would an originalist approach to constitutional interpretation.

If the Court had less power, and intervened less often, the people, not nine unelected justices, would have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[6]

***

Attacks on the Court’s legitimacy reflect little more than disagreement with decisions that conservatives or liberals do not like. As Justice Kennedy stated, “[a]n activist court is a court that makes a decision you don't like.”[7] The conservative and liberal media – and politicians – do a terrible disservice when they attack the Court with inflammatory comments that influence the public’s perception of the Court’s legitimacy. Having said that, if the Court wants to shed the perception that it is a political institution, it should stop deciding cases that are so politically divisive. Along with a super-majority requirement, this will help to insulate the Court from attacks on its legitimacy, however unfair such attacks may be.

 

[1] PolitiFact | Despite popular misconception, Supreme Court 9-0 rulings are not that rare

[2] See id.

[3] See id.

[4] Michael D. Berry, The Numbers Reveal a United Supreme Court – And a Few Surprises (Aug. 2, 2023), available at: The Numbers Reveal a United Supreme Court, and a Few Surprises | The Federalist Society (fedsoc.org)

[5] Trop v. Dulles, 356 U.S. 86 (1958).

[6] Lawrence v. Texas, 539 U.S. 558 (2003).

[7] CBS News, Justice Kennedy: Senators Focus on Short-Term (May 14, 2010), available at: Justice Kennedy: Senators Focus on Short-Term - CBS News

May 26, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, May 11, 2024

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

  • Begin with a powerful opening theme that hooks the audience.
  • Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
  • Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
  • Emphasize the most favorable facts that support your argument.
  • Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
  • Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
  • Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
  • Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

***

Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.

May 11, 2024 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, April 30, 2024

Lessons in Resilience from Moot Court

Dumier high tribunal of judges

Last year marked my 25th year of coaching moot court. This year was the first year for our program to win ABA NAAC. I think the two are related, and wanted to share some thoughts on what I've learned over the years.

First, moot court, like many skill exercises, prepares students for work in many ways. They learn principles of rhetoric that are too frequently untaught. They learn the importance of standards of review, limiting principles, and the potential impact of new law to judges. And, of course, they learn to organize and simplify their thoughts on both print and at the podium.

But moot court teaches much more than that. It teaches students time-management skills. They learn to collaborate with others. They learn accountability. And they learn to lose.

That last lesson is, I think, key. Even before COVID, psychologists were noting a serious decline in resilience among incoming college students. Many students had become afraid to take risks, because failure was seen as catastrophic. As a result, they had begun to avoid public speaking or competition, and to instead demand easier grading, do-overs, and other safety measures that ensured they would not make lasting mistakes. Or learn from them.

Then COVID hit. Whatever problems were brewing before that were magnified by the isolation and trauma many young people felt.

Studies in resilience show that it has several predictors. High self-esteem and strong social attachments help. And exposure to stressors, in moderation, can build up a sense of resilience. Some have taken to calling this latter form of resilience "grit."

Moot court teaches grit. It teaches students (the vast majority of them, at least) that they will not always win. That sometimes, this will seem subjective and unfair. And that they need to learn from those failures, grow, and try again. It teaches them that failure is fuel.

Our program's success this year was carried by a lot of that fuel. Nine years ago we made it to ABA NAAC nationals and lost. One of those competitors was so fueled by that loss that she became my co-coach, just to help us get back and try again. Three years ago we made it to ABA NAAC finals. We lost again. Those students have volunteered to guest judge every year since. And this year, my teams lost in finals at our state competition, and lost at NY Bar Nationals. Then a dry cleaner lost one student's suits, and an earthquake hit during the competition itself.

None of that mattered. By then, these students had resilience to spare. They had heard the stories, they had experienced the losses, and they wanted nothing more than to keep going, and daring for greater things. And with that resilience, built over a decade of pain in this competition, we won.

Teddy Roosevelt is often quoted for saying:

“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again... who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly.”

We need to teach our students to dare greatly. Moot court helps them learn to do just that.

April 30, 2024 in Appellate Advocacy, Law School, Moot Court, Oral Argument, Rhetoric | Permalink | Comments (1)

Saturday, April 27, 2024

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

April 27, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Saturday, April 20, 2024

An Argument Against Block Quotes

Recently, I saw a long listserv conversation about teaching first-year and LLM students to properly format block quotes. You might remember from your law review days that block quotes are long quotes of “fifty or more words.”  See The Bluebook, Rule 5.1.  Under The Bluebook and other citation manuals, we must set block quotes apart from other text, usually in a single-spaced block of text double-indented from the left and right, with no quotation marks.

Apparently, word processors have made it more difficult to do the left and right indenting needed for block quotes, and the original listserv poster asked for advice on helping students manage block quotes efficiently.  Having noticed the way our Typepad blogging system makes simple indenting more difficult now, and having banned my students from using most block or other long quotes for years, I was intrigued by this thread. 

Some professors on the thread suggested using quotation marks, even in a block quote, to deal with indenting difficulties.  Other professors offered great tips on various word processing program shortcuts and macros to help students properly indent their long quotes.  However, some contributors asked if teaching the format was worth the investment of class time.  The original poster later gave us all a summary of the info gained from the post, and explained that the majority of commenters suggested taking some class time to teach students a tech shortcut. 

To my surprise, I did not see any comments suggesting students simply break apart the quoted material into shorter, more digestible portions for the reader.  Thus, I acknowledge that I might be an outlier here.  Plus, a block quote is much easier to insert into a document–with mere cutting and pasting–than carefully crafted sentences with smaller pieces of the quoted material.  Nonetheless, I ask you to consider clarity and word limits (hopefully in that order), and ban most block quotes from your writing.  

First, think about how often you have actually read the material in a block quote.  Be honest.  If you are like many readers, you tend to skim tightly blocked text, like long brief point headings and block quotes.  See https://proofed.com/writing-tips/5-top-tips-on-how-to-write-for-skim-readers/. Even style manuals allowing the use of block quotes give many tips on how to make sure your reader still gets your point, despite the block quote.  For example, Bryan Garner’s The Redbook Rule 8.10 suggests that we always introduce a block quote with our own assertions, and let the block material simply support our claims.  Just removing the block entirely will increase your chance of the reader truly seeing your ideas.   

Next, think about the lack of clarity from fifty or more words from one source at one time.  Is the material you need from the quote really just on one point?  If so, you likely do not need fifty words or more from the source, added to your own introduction and analysis.  Consider placing the key parts of the quote, likely five to ten words, in your own sentence.  Additionally, if your rationale for using the long block is to cover several points at once, you might be asking too much of your reader.  Your reader will better understand two or three shorter sentences, each with one main point and a relevant short part of the former block quote. 

Finally, look for extra words in the block quote that you don’t need for your point.  Long block quotes are just that; these blocks are long pieces of text that often devour your word count without adding meaningful content.  My students spend a huge amount of time railing against word limits.  Nonetheless, we know word limits are part of any appellate practice.  Thus, I suggest removing long quotes and keeping only what you need.  Sure, you could keep the quote and add ellipses, but too many ellipses are distracting.  See also Jayne T. Woods, The Unnecessary Parenthetical (“Parenthetical”) (April 9, 2024) (explaining research on the way unneeded parentheticals mid-sentence distract readers).  Rather than obscuring your point in a closely-typed long quote with jarring ellipses, use your own words to present the ideas, working in key short quoted phrases.  

Of course, you might have an instance where the clearest and shortest way to convey your point truly is a block quote.  For this reason, I ban most, not all, block quotes.  I urge you to do the same. 

April 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, April 14, 2024

Tips for Dealing with a Difficult Adversary

During your legal career, whether in litigation, at trial, or on appeal, you will invariably encounter a “difficult” adversary. For this article, “difficult” does not refer to exceptionally talented adversaries. Rather, it refers to attorneys who, for lack of a better word, are jerks. They are the lawyers who, among other things, file numerous and borderline frivolous motions, call you on a Monday morning or Friday evening screaming at you, and file lengthy and incoherent briefs that leave you wondering how to respond. Dealing with these jerks is taxing and time-consuming. Below are a few suggestions to make your experience as painless as possible.

1.    Remain calm, professional, and patient.

When dealing with difficult adversaries, never let them affect you in a manner that causes you to react emotionally and get into a confrontation with them. Doing so will only exhaust you and will not in any way achieve your objectives in a particular litigation.

Instead, realize the type of person with whom you are dealing. In some (or many) instances, difficult adversaries are covert or malignant narcissists. Importantly, narcissists lack empathy, have a grandiose sense of self, display a sense of entitlement and a need for admiration, and consistently manipulate reality to make themselves the “victim” in every situation. When you react emotionally to these jerks and get involved in their drama, you are providing them with narcissistic supply, or the attention that they crave. Once you do this, the cycle of narcissistic abuse never ends because at the root of their problem is insecurity, which fuels their constant need for validation.

As such, never make the mistake of arguing with these people. In all interactions, remain calm, professional, and patient, and never let your emotions show. Once a narcissistic adversary realizes that they cannot provoke you and thus use you to feed their need for attention and validation, they will mediate their behavior. Furthermore, treating your adversaries with respect, even when they are difficult, reflects maturity and good judgment.

2.    Be kind and try to find common ground.

Good people exhibit kindness, cooperativeness, and humility even when it is difficult. Being combative with your adversary will get you nowhere and make it harder to accomplish your objectives. Thus, regardless of how repulsive your adversary is, you should always remain focused on achieving your objectives in a particular case, not on the adversary.

Remaining kind and respectful in the face of a difficult adversary is likely to disarm the adversary and make cooperation and compromise more likely. As they say, you catch more flies with honey than with vinegar.

3.    When necessary, draw boundaries and command respect.

In some situations, particularly when dealing with insufferable narcissists, kindness and patience may not work because an adversary will continue incessantly with their abusive behavior, such as by filing frivolous motions or constantly calling you to scream and yell about some “injustice” that has made them a victim once again.

If, despite your best efforts, this behavior continues, you should draw a boundary and make it clear to your adversary that you will not tolerate such nonsense. That does not mean getting into a confrontation with your adversary because that will likely exacerbate the problem and their behavior. Rather, firmly make clear that their behavior is unacceptable and take measures to draw necessary boundaries, such as by refusing to take their calls and notifying the court of the adversary’s recalcitrant behavior. Put simply, sometimes you must look the bully in the eye and say enough is enough. Knowing when to accommodate and when to be assertive is critical to ensure that your adversary will respect your boundaries. And be sure to document every interaction with your adversary because they can – and will – distort reality (and even lie) to achieve their goals and paint you in a bad light.

4.    Change your strategy.

In some circumstances, an effective way to deal with an adversary is to change your strategy and take a more calculated approach. Indeed, difficult adversaries are often controlling people who will seek to control their interactions and conversations with you. Do not allow them to do that. For example, reframe a legal or factual issue that the adversary raises with you. Identify areas of common ground with your adversary, which may lead to increased collaboration. Ask the adversary to explain the basis for specific discovery requests, and to identify the factual and legal basis for their arguments. And if the adversary continues to be difficult, such as by filing motions and misrepresenting the facts, do not be afraid to hit back with motions or discovery requests in which you expose their duplicity. As stated above, sometimes you must look a bully in the eye and say enough is enough.

5.    Talk to your adversary on the phone (or in person) rather than via email.

Some individuals, particularly difficult ones, use email to send lengthy messages that contain baseless accusations and invective. Certainly, it is easier to hurl insults at people when you are typing on a keyboard in the privacy of your office. But it is not so easy to do so over the phone or in person. So if the adversary sends you an offensive email, do not respond, especially not immediately, when your emotions may affect your rationality. Instead, think carefully about how you want to respond, and then call your adversary. That will enable you to engage in a dialogue, ask questions, and respond in a mature and conciliatory manner, which can increase the likelihood of collaboration and a favorable outcome.

6.    Remember that it is not about you.

Difficult adversaries can affect you emotionally and psychologically, and cause immeasurable stress, because their strategy is to make you believe that you have perpetuated some wrong or injustice, and in some instances to personally attack you. Remember that difficult people frequently, if not always, need to see themselves as the victim.

Never let these ridiculous tactics affect you. A difficult adversary’s behavior has absolutely nothing to do with you. Rather, it reflects their need for control. It results from their insecurity and emotional immaturity. Do not fall for this ridiculous behavior because if you do, you will play right into their hands.

***

Sadly, most if not all lawyers will encounter jerks during their legal career. Knowing how to deal with these people will reduce the stress that they would otherwise cause you and keep you focused on achieving the best result for your client.

April 14, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, March 2, 2024

Lessons from the Fani Willis Disqualification Hearing in Fulton County, Georgia

Over the past few weeks, Judge Scott McAfee has presided over a hearing in which former President Donald Trump’s lawyers are seeking to disqualify Fulton County District Attorney Fani Willis and attorney Nathan Wade from prosecuting Trump and his co-defendants for alleged violations of the Racketeer Influenced Corrupt Organizations Act. The hearing provided several lessons for litigators concerning persuasive advocacy.

1.    During direct examination, get to the point quickly and do not focus on irrelevant details.

At times, the direct examinations by some of former President Trump’s lawyers focused on irrelevant details, making the examinations unnecessarily long and reducing their persuasive impact.

In fact, Judge McAfee expressed frustration—and understandably so —with such questioning, particularly on direct examination. For example, during her direct examination of Willis, Ashleigh Merchant, who is an excellent lawyer, often focused on tangential details that detracted attention from the dispositive issues, such as the monthly rent amount that Willis paid to her friend Robin Bryant-Yeartie, whether Willis’s father remained at the house where Willis, for safety reasons, had moved from, and whether Willis’s children had returned to (and presumably resided) at the house after she had left. 

None of these questions had anything to do with the dispositive issues in the case, namely: (1) when the relationship between Willis and Wade began; and (2) whether Willis benefitted financially from hiring Wade as a special prosecutor. This is why Judge McAfee, obviously frustrated, stated, “Ms. Merchant, can we get to the relationship and financial benefit?”

The lesson is simple. Get to the point quickly. Focus on the issues and realize that less is more. Otherwise, you risk losing the judge’s (or jury’s) attention and diminishing the persuasive value of your direct examination. 

2.    Ask concise, direct, and closed-ended questions and organize them to maximize persuasive impact.

On direct and cross-examination, attorneys should ask concise, direct, and, in appropriate instances, closed-ended questions that are straightforward and that produce the testimony you seek to elicit. During the hearing, some of Ashleigh Merchant’s and the other attorneys’ questions were compound, open-ended, and confusing. This allowed Willis both to evade answering certain questions and, alternatively, to offer extensive explanations that had little, if anything, to do with the information that the attorneys sought.

Additionally, a fair amount of the questions that Trump’s lawyers asked were objectionable, causing needless delay and distracting from the relevant issues. And Trump’s lawyers’ responses to several objections, particularly concerning privilege, were unpersuasive. Indeed, the failure to draft a direct examination that is concise, to the point, and non-objectionable undermines the persuasive value of that examination and can, in some instances, negatively impact a lawyer’s credibility. When that happens, the likelihood of success diminishes substantially.

3.    Be prepared, and understand the effort needed to be truly prepared.

Preparation is everything, and in the legal profession, it often takes countless hours to be fully prepared for a hearing or trial. This includes, but is not limited to, researching effectively, knowing the facts and holdings of all relevant case law, having a thorough grasp of the facts, anticipating the adversary’s objections and counterarguments, preparing witnesses, and developing a cohesive and compelling theory of the case. When an attorney is inadequately prepared, it shows and affects the attorney’s credibility and the persuasive value of the attorney’s arguments.

At points during the hearing, some of the attorneys on both sides seemed unprepared. For example, they struggled to locate information in their files, often shuffling through papers or otherwise taking time to find the information needed to substantiate their points, and inquired into privileged information on direct examination. At other times, one or more attorneys appeared to not fully understand the holding of a particular case or, alternatively, slightly mischaracterize a prior court’s holding, which was evident to a degree during the state’s closing argument. 

As stated above, these mistakes can have a substantial, if not decisive, impact on a lawyer’s credibility and a client’s likelihood of succeeding on the merits.

4.    Slow down and articulate clearly.

During the hearing, particularly on direct and cross-examination, a few of the attorneys spoke too fast during direct and cross-examination and struggled to respond effectively to objections (and Judge McAfee’s questions), which affected the quality of their presentation. When attorneys speak too fast, they lose the opportunity to emphasize favorable points and risk confusing a judge or jury. As such, attorneys should strive to speak in a conversational tone, utilize strategic pauses, transition effectively between different topics (i.e., signposting), and where appropriate, use a witness’s answer to frame the next question (i.e., looping). When attorneys speak too quickly, they dilute the impact that favorable testimony will have on a judge or jury. 

This goes to the broader point that much of persuasive advocacy is reflected in the intangible and non-verbal qualities that an attorney brings into the courtroom. It is not sufficient, for example, to draft an outstanding oral argument if that argument is not delivered persuasively. In short, it is not just what you say; it is how you say it.

A textbook example of how to conduct a powerful cross-examination (or direct examination of a hostile witness) was attorney Steve Sadow’s examination of Terrance Bradley, Wade’s former law partner who had represented Wade in a divorce proceeding. Sadow got to the point quickly, asked clear and impossible-to-evade questions, and spoke with confidence and conviction. In so doing, Sadow severely, if not irreparably, damaged Bradley’s credibility.

5.    Maintain your credibility.

At all times, attorneys and witnesses must maintain their credibility. If a judge or jury doubts your credibility, they will disregard your substantive arguments and likely rule in the opponent’s favor.

During her examination by Merchant, Willis sometimes reacted with anger, emotion, and condescension in response to specific questions and sometimes offered superfluous explanations that had no relationship whatsoever to the question being asked. Such a demeanor risks alienating the judge (or jury) and losing whatever sympathy that you could have engendered through your testimony.

Most importantly, attorneys and witnesses must always be honest with the court. During the hearing, Trump’s attorneys called Bradley to the stand. Several weeks before the hearing, Bradley, for reasons that only he can know, had been texting Merchant about when the relationship between Willis and Wade began (Willis and Wade claimed that it began in 2022, after Willis hired Wade as a special prosecutor). In these text messages, Bradley responded “Absolutely” when Merchant asked him if the relationship began before 2022 and even volunteered specific details indicating that the relationship began in 2019 after Willis and Wade met at a continuing legal education seminar. When Bradley was called to the stand, however, he conveniently forgot—or did not recall—much of the information that he had conveyed to Merchant. When pressed, Bradley claimed that he was merely “speculating” about the beginning of the relationship (despite previously providing specific details to Merchant) and that he had no basis whatsoever to support this “speculation.” It should go without saying that Bradley had absolutely no credibility and, as such, severely undermined Willis’s and Wade’s claims regarding when their relationship began.

Maintaining credibility requires, among other things, that you keep your composure in the courtroom, control your emotions, refrain from making meritless objections, and tell the truth. 

6.    Do not make too many objections and avoid meritless objections.

Objections are a vital part of any hearing or trial, as attorneys must ensure that questions on direct and cross-examination comport with the rules of evidence. But sometimes, attorneys can make too many objections and, in so doing, damage their credibility.

This was evident during Trump’s lawyers' examinations of Terrance Bradley. After what seemed like every question, the attorneys for the state objected on various grounds, such as that the question was asked and answered, not relevant, and privileged. It was clear, however, that the questions Merchant and the other attorneys, such as Sadow, posed to Bradley were within the purview of Judge McAfee’s order allowing Trump’s attorneys to question Bradley about when Willis’s and Wade’s relationship began, despite prior claims of attorney-client privilege. Notwithstanding, the state’s attorneys continued to make questionable objections despite being repeatedly overruled, and Judge McAfee appeared quite frustrated.

The problem with this should be obvious: too many objections, particularly when they lack serious merit, undermine your credibility. It also suggests that you have something to hide, namely, that the damaging information the adversary seeks is, in fact, true. This is not to say, of course, that attorneys should not object frequently when the adversary consistently asks objectionable questions. It is to say that attorneys should not object when the basis for that objection is meritless and the likelihood of a judge sustaining it is minimal.

***

The above discussion is not meant to unduly criticize the attorneys or the parties in this case. They are exceptionally talented lawyers and, at many points during the hearing, they advocated admirably and persuasively on behalf of their clients. Furthermore, Judge McAfee showed that he is an outstanding judge who has impeccable knowledge of the law and rules of evidence and who is balanced, reasonable, and fair. Judge McAfee is certainly a jurist who represents the best of the legal profession.

Regardless of whether Judge McAfee disqualifies Willis, these hearings demonstrate the importance of exercising good judgment, being honest with the court and the public and, when prosecuting a former president, adhering to the highest ethical standards.

March 2, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Oral Argument | Permalink | Comments (0)

Sunday, February 18, 2024

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1.    Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select. 

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]   

2.    Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3.    Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

 

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

February 18, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, February 3, 2024

The Colorado Supreme Court's Silly Decision

Recently, the Colorado Supreme Court, in a 4-3 decision, held that former President Donald Trump was not eligible to remain on the ballot for Colorado’s upcoming primary.[1] While this article will not dissect every aspect of the Court’s decision, it will focus on the principal grounds for the decision, its effect on democratic choice and, its impact on the judiciary’s institutional legitimacy.

The Colorado Supreme Court based its decision on three findings.

First, the Court held that, under Section Three of the Fourteenth Amendment to the United States Constitution, Trump was an “officer of the United States.”[2] A reasonable argument can be made, however, that Trump is not an “officer of the United States” because the Fourteenth Amendment, while mentioning “Senator” and “Representative,” never mentions “President,” and the text lists federal officials in descending order from “Senator” to “Representative” to civil or military office holder. Additionally, an earlier draft of Section Three included the word “President,” but it was deleted and not included in the final version. Furthermore, the historical record suggests that Section Three applies to appointed, not elected, positions.[3] At the very least, one can argue that Section Three is ambiguous concerning whether the president is included in that section.[4] The point is not to say that the Colorado Supreme Court’s decision holding that Trump is an “officer of the United States” is meritless. It is to say, however, that the text is susceptible to alternative interpretations. In such a situation, the Court should reach an outcome that furthers, not hinders, democratic participation, and that enhances, rather than reduces, democratic choice. The four justices in the majority, all appointed by Democratic governors, chose the opposite path.

Second, the Court held that former President Trump “engaged in” an insurrection. Surely, the events on January 6, 2020, were disgraceful and a sad moment in our country’s history. Thousands of citizens stormed the Capitol Building, destroyed property, threatened lawmakers, and caused harm that resulted in five deaths.[5] As despicable as this conduct was, however, a reasonable argument can be made that Trump neither incited this violence nor engaged in an insurrection. To begin with, in Trump’s January 6 speech, he told protesters to march to the Capitol “peacefully and patriotically.”[6] This language alone makes it difficult to assert, under Brandenburg v. Ohio, that Trump incited imminent and unlawful violence.[7] Additionally, what precisely did Trump do that constitutes “engaging in” an insurrection? Yes, Trump encouraged his supporters to “fight like hell,” but he also told his supporters to march “peacefully and patriotically" and he did ultimately call for the protestors to “go home.”[8] Thus, a credible argument can be made that Trump never “engaged in” an insurrection. Additionally, Congress has already codified insurrection in 18 U.S.C. 2383, which requires a criminal conviction before one can be deemed an insurrectionist. Trump has never been charged with, much less convicted of, insurrection, and on February 13, 2021, the Senate acquitted Trump of this charge.[9] If Trump had been charged, he would have, at the very least, been afforded the due process protections that were so conspicuously absent in the lower court in Colorado. Given the above facts, particularly the dearth of fair procedures in the lower court (e.g., no discovery, inability to subpoena documents, and no opportunity for a fair trial), how could the Colorado Supreme Court possibly hold that Trump “engaged in” an insurrection, the result of which was to eliminate the leading Republican presidential candidate from the Colorado primary and thus undermine democratic choice? The answer should seem obvious – and that answer has nothing to do with the law or the Constitution.

Third, the Colorado Supreme Court held that Section Five of the Fourteenth Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” was self-executing and thus enabled the Court to adjudicate whether Trump engaged in an insurrection and could be disqualified from the ballot.[10] Certainly, one could argue that, in mentioning Congress in Section Five, the drafters did not mean to give Congress exclusive authority to enforce Section Three. But one could also argue that the text could not be clearer: only Congress has the power to enforce Section Three, which it did when enacting 18 U.S.C. 2383 and which, as stated above, requires a criminal conviction for insurrection – a crime for which Trump was never charged. Yet again, the Colorado Supreme Court ignored these facts and, unlike every state court that previously considered this issue, made the unprecedented and decidedly undemocratic choice to hold that Trump was disqualified from the ballot.[11]

Does it seem correct that the Constitution’s drafters believed that a state court could adjudicate a matter where the liberty interest at stake was so substantial yet the procedures for determining whether to deprive a citizen of that interest were so truncated? Of course not. This is particularly true considering that the district court's decision that Trump had engaged in an insurrection was based largely on the findings of the January 6 Committee, which selectively called witnesses, admitted hearsay evidence, and otherwise observed none of the procedural safeguards that a trial requires. Yet, at every turn, whether it was deciding if Trump was an “officer of the United States” or had “engaged in” an insurrection, or whether Congress had the exclusive authority to enforce Section Three, the Colorado Supreme Court ruled against Trump. In so doing, the Colorado Supreme Court made originalism its best friend even though its justices are anything but originalist. Convenience obviously trumped conviction.

As stated above, this is not to say that a particular interpretation of Sections Three and Five is superior to another. It is to say that when reasonably alternative interpretations of a constitutional text or statute are possible, courts should reach outcomes that promote democratic choice and participation.[12] Viewed in this light, the Colorado Supreme Court’s interpretation of the Fourteenth Amendment and resulting decision was entirely unreasonable. The courts in Michigan, Minnesota, Oregon, Nevada, and Rhode Island, which dismissed lawsuits that could have resulted in Trump’s disqualification from their respective ballots, got it right.[13] 

The Colorado Supreme Court could not have honestly believed that its decision preserved democratic choice or protected democracy. Furthermore, like any rational person, the Colorado Supreme Court – whose justices were all appointed by Democratic governors – must have known that its decision would be controversial, invite chaos and uncertainty into the electoral process, engender charges of partisanship and election interference, foment division, further erode public trust in the judiciary and rule of law, and fuel the belief that it was motivated by the desire to prevent Trump from regaining the presidency. After all, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone believe that the Colorado Supreme Court would have reached the same result? If you believe that the answer is yes, you probably also believe that Letitia James and Fani Willis (whose days prosecuting Trump may soon be numbered), acted impartially and with reverence for the law when they sought indictments against Trump based on tenuous legal theories, and in jurisdictions that are so overwhelmingly liberal that a fair trial is a fantasy.  Additionally, the Colorado Supreme Court surely must have known that the United States Supreme Court would almost certainly overturn its decision, particularly on due process grounds.

Given these facts, and given that the provisions upon which the Colorado Supreme Court’s decision was based were subject to alternative and equally reasonable interpretations, how could the four democratically appointed justices have thought this decision was a good idea? How could they believe that, in an era where some believe that democracy is “at risk” and “on the ballot,” this decision would not engender claims that it was an anti-democratic and politically motivated attempt to eliminate Trump from the presidential race? The truth is that the majority engaged in politics, not law, and was motivated by emotion, not reason. They were striving to find any path, however implausible, to reach an outcome that was pre-determined and fundamentally dishonest.

Not surprisingly, the usual suspects, including some law professors (the vast majority of whom are overwhelmingly liberal) and mainstream legal commentators, such as former Trump apologist George Conway, who believes Trump should spend the rest of his life in prison, have come out of the woodwork to support the Colorado Supreme Court.[14] Whether through law review articles, poorly written amicus briefs, or media interviews, these “experts” often use fancy words and legalese to create the veneer of objectivity and the pretense of neutrality when their motivations are anything but neutral or objective. And like the Colorado Supreme Court, these “experts,” who consistently criticize originalism in favor of “living constitutionalism,” have suddenly adopted originalism to support their arguments, even though they have spent much of their careers criticizing originalism – and Justice Antonin Scalia – as “racist,” “oppressive,” and a threat to those who value victimhood. Ultimately, one should be wary of individuals whose arguments so conveniently coincide with their personal beliefs.

Make no mistake: a political agenda that is rooted in a dysfunctional hatred of Trump and a disregard for the very democracy they claim to want to preserve and protect motivates these “experts.” As stated above, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone really think that Harvard Law Professor Laurence Tribe or any of the law professors who submitted amicus briefs in support of the Colorado Supreme Court's decision would take the same position? Of course not. And for those liberal scholars who chastise Trump for claiming that the 2020 presidential election was “stolen,” recall how vehemently some of these scholars questioned the result in Florida after the 2000 presidential election, and how they trashed the Supreme Court when the majority did not rule in favor of Al Gore. Likewise, remember when Stacey Abrams said after her loss in 2019, “[d]espite the final tally and the inauguration … I do have one very affirmative statement to make. We won.”[15] Also, one cannot forget Hillary Clinton repeatedly claiming that Trump was an illegitimate president.[16] These comments sound eerily like Donald Trump, don’t they? 

It should come as no surprise that the public has lost faith in the judiciary and our academic institutions. Sadly, the Colorado Supreme Court’s decision is only the tip of the troubling iceberg. In Dobbs v. Jackson Women’s Health, the U.S. Supreme Court decided to overturn a nearly half-century precedent – Roe v. Wade – because the political affiliations of the justices had changed, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg and Justice Brett Kavanaugh replacing Justice Anthony Kennedy.[17] And in Students v. Fair Admissions v. Harvard, the Court, once again armed with two new Republican-appointed justices, suddenly discovered that affirmative action programs were unconstitutional.[18]  In both cases, the justices were neatly and predictably split along ideological lines. In other words, the Constitution’s meaning is contingent upon the party affiliations of the justices.

The health of this country and its institutions is deteriorating. Citizens used to revere our public institutions, including state and federal courts, particularly the Supreme Court, admire professors for teaching and mentoring young people, and look to the media to report accurately and objectively on public events. People used to believe that intelligence trumped ideology, and that integrity trumped indoctrination. That is no longer the case. Donald Trump has exposed what lies behind the curtain of the institutions and academies that we once considered hallowed ground: dishonesty, ideological uniformity, hypocrisy, and intolerance. If you doubt this, walk into some law schools, and ask to meet with a conservative professor. You might get arrested, charged with a microaggression, and ordered to undergo “anti-bias” training (which studies have shown does not work). Try to give a presentation about originalism at a law school and you might get shouted down by a mob of entitled, hyper-sensitive, and narcissistic students whose intelligence is eclipsed by their ideology. Indeed, some academic institutions focus more on indoctrinating students than teaching them critical thinking and writing skills, and welcoming diverse perspectives in the classroom.[19]

And they often show a shocking disregard for the very diversity, inclusion, and “safe spaces” that they claim to champion. For example, who would have thought that, at a congressional hearing in December 2023, the presidents of Harvard, MIT, and the University of Pennsylvania would fail to unequivocally and without hesitation condemn campus speech that called for the genocide of Jewish people? Who would have imagined that a law student at NYU – the president of the Student Bar Association – would be seen tearing down posters depicting the tragic loss of life to Israeli citizens and that administrators at various colleges would fail to immediately condemn Hamas’s despicable attack on Israel? Yet these are the same people who preach diversity and inclusion. It’s a disgrace, and the divisiveness that courts, the media, and academia have fomented in this country is nothing short of tragic. Civil disagreement is a vestige of the past, and collegiality is an aspiration, not a reality. Arrogance has taken precedence over humility, and hypocrisy has replaced honesty.

The United States Supreme Court will almost certainly overrule the Colorado Supreme Court’s decision – perhaps unanimously – and the Court will likely rely on, among other things, the lack of procedural due process afforded to Trump. In so doing, the Court should emphasize that the people, not the courts, should decide who becomes the next President of the United States. And if the people elect Donald Trump, so be it. It is preferable to have the people elect a candidate that you do not support than to have a court enable through dishonest means the election of a candidate that you do support.

After all, you believe in democracy, don’t you?

[1] See Anderson v. Griswold, available at: 23SA300.pdf (state.co.us)

[2] See U.S. Const., Amend. XIV, Section 3.

[3] See Trump v. Anderson, Amicus Brief, amicus brief of Johs Blackmun amicus brief) available at: 20240109145107356_23-719 Amicus Brief Professors Barrett and Tillman Final.pdf (supremecourt.gov)

[4] See Trump v. Anderson, Amicus Brief of Kurt T. Lash, available at: 20240116095552269_23-719 tsac Lash.pdf (supremecourt.gov)

[5] See Jack Healy, The Are the Five People Who Died in the Capitol Riot (Jan. 11, 2021), available at: These Are the People Who Died in the Capitol Riot - The New York Times (nytimes.com)

[6] See Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial (Feb. 10, 2021), available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[7] See Brandenburg v. Ohio, 395 U.S. 444 (1969).

[8] See Naylor supra note 6, available at: available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[9] See Anderson, supra note 1, available at: available at: 23SA300.pdf (state.co.us) (Samour, J., dissenting).

[10] See id.

[11] See id.

[12] See, e.g., Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Vintage, 2006).

[13] See Lawfare, Tracking Section 3 Trump Disqualification Challenges, available at: Trump Disqualification Tracker | Lawfare (lawfaremedia.org)

[14] See Ed Mazza, George Conway Slams Trump With All-Too-Blunt Prison Prediction (Jan. 10, 2024), available at: George Conway Slams Trump With Blunt Prison Prediction | HuffPost Latest News

[15] See Alex Schemmel, Tacey Abrams Says She ‘Never Denied the Outcome’ of 2018 Election Despite Past Claims (Oct. 5, 2022), available at: Stacey Abrams says she 'never denied the outcome' of 2018 election despite past claims | WPDE

[16] See CNN, Hillar Clinton Calls Trump ‘Illegitimate President,” available at: Hillary Clinton calls Trump 'illegitimate president' | CNN Politics

[17] 597 U.S. 215 (2022)

[18] 600 U.S. 181 (2023)

[19] See Eric Kaufmann, We Have the Data to Prove It: Universities are Discriminating Against Conservatives (March 5, 2021), We Have the Data to Prove It: Universities Are Discriminating Against Conservatives | Opinion (newsweek.com)

February 3, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, January 20, 2024

An Appealing Definition of Persuasion

Happy 2024!  I hope you are off to a productive and healthy new year. 

In my classroom, we started the new year with a move to persuasive writing.  I began class with a discussion of some differences between argument and persuasion.  My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division.  Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.  

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.”  We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.”  See https://www.merriam-webster.com/dictionary/argument.  Then, I suggested my definition of persuasion.  I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.”  We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts.  (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.”  See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference.  Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients.  On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion. 

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing.  Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.”  https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2.  Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching  intro hooks, something I also stress in my persuasive writing teaching.  However, I soon realized several of these students also wrote first drafts less focused on deep analysis.  Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases.  This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.  

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach.  Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law.  Their papers suggested a result on appeal based on their analysis of the facts only.  In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.  

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample.  Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases.  Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly. 

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write.  As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

January 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, December 25, 2023

A Big Christmas Present for Skills Professors?

Merry Christmas and Happy Holidays from the Appellate Advocacy Blog.

The Council of the ABA's Section of Legal Education and Admissions to the Bar may be giving skills faculty at law schools a late Christmas present.  The Council is considering revisions to Standard 405 that would provide more job protections for skills professors. In short, the changes would require law schools to offer skills faculty tenure-like job protections. You can read a memo on the changes here. The Council is accepting comments on the revisions until January 8, 2024. Instructions for submitting comments are in the memo.

Overall, I am pleased with the changes, but as I explain in my comments to the Council, I don't think that the changes go far enough. Having left a tenure-track job for a job with clinical tenure, I have seen firsthand how clinical tenure can promote inequities at law schools. 

I encourage those interested in these issues to review the proposal and consider submitting a comment. My comments are below.

***

Dear Chair McCormack:

I am writing in support of the Council’s proposed revisions to Standard 405. While I do not think that the revisions go far enough, they represent a positive step in the right direction. As I will discuss further below, this step is consistent with other changes to the ABA Standards that recognize the value of legal writing and skills education.

I am writing this letter in my personal capacity. It represents my views and not those of the University of Arizona or the James E. Rogers College of Law. My views have naturally been informed by my decade-plus in legal academia—first as a tenure-track professor at Regent University School of Law and currently as a faculty member with continuing status (clinical tenure) at the University of Arizona James E. Rogers College of Law.

As a professor I have taught both skills and doctrinal courses, including Constitutional Law I & II, Federal Courts, Appellate Advocacy, and the first semester 1L writing course. My comments to the Council are based in part on a book chapter[1] I wrote about how I incorporate skills education into my doctrinal classes.  My comments will cover the importance of skills education, how the revisions are consistent with past Standards changes on legal skills education, and how the revisions don’t go far enough.

The Importance of Skills Education

Legal writing is one of the few skills taught in law school that all attorneys perform. According to a 2011–2012 study of newly licensed attorneys by the National Conference of Bar Examiners, 100% of surveyed attorneys reported that that they engaged in the skill of “written communication.”[2] In fact, of the 98 knowledge domains, 36 skills and abilities, 43 general tasks, and 13 specific practice area tasks that the study asked attorneys to rate as “significant . . . to [their] performance as a newly licensed attorney,” “written communication” had the highest significance rating and was the only item that 100% of attorneys said that they performed.[3]  The other highest rated items, both in significance and percentage performing, all fell into the skills domain. They represent skills taught in legal writing courses—“paying attention to details,” “listening,” “oral communication,” “professionalism,” “using office technologies,” “critical reading and comprehension,” “synthesizing facts and law,” and “legal reasoning.”[4]

Anecdotally, when I talk to judges and other legal employers, they often emphasize that they want to hire graduates with strong research and writing skills. These employers know that they can teach the substance to new hires, but teaching the skills of writing and research are time-consuming and difficult.

Given the importance of legal writing as a skill that law students must learn, it makes sense to offer tenure-like job protections to legal writing faculty. It seems counterproductive to treat educators who teach one of the most important skills students learn in law school as second-class citizens. It sends the wrong message to our students (and other faculty) about the importance of skills education. 

Further, offering more job protections, and the resulting higher salaries, to skills faculty will help law schools recruit and retain better skills professors, which will only improve the quality of legal writing and skills education.

The Revisions are Consistent with Past Changes Recognizing the Importance of Skills Education

Since the early 1980s, the ABA has slowly revised the Standards to recognize the importance of skills education. As I explained in my book chapter (apologies for the long block quote):[5]

In the early 1970s, as part of a major reform to the standards for approving law schools,[6] the ABA required that law schools teach, as part of their core curriculum, “‘the duties and responsibilities of the legal profession’” and “‘professional skills, such as counselling, the drafting of legal documents and materials, and trial and appellate advocacy.’”[7] In 1981, the ABA added the requirement that law schools “offer to all students at least one rigorous writing experience,” in addition to “instruction in professional skills.”[8]

Eight years later, the ABA Council of the Section of Legal Education and Admissions to the Bar created a task force to study the “gap” between law schools and the legal profession.[9] Part of the task force’s work included examining what “skills” and “values” attorneys needed “to assume professional responsibility for handling a legal matter.”[10] In surveying newly licensed attorneys and their employers on this point, the task force found that “oral and written communication skills” were some of the most important skills for lawyers to possess.[11] It also found that while those surveyed thought that these skills could be taught in law schools, they also thought that law schools were doing a poor job teaching them.[12] For example, 77 percent of newly licensed Chicago attorneys thought that oral communication could be taught in law school, but only 39 percent thought sufficient attention was given to teaching it.[13] Similarly, 91 percent thought that written communication could be taught in law school, but only 55 percent thought that law schools devoted sufficient attention to teaching it.[14]

The task force published its report, known as the MacCrate report after its chairperson Robert MacCrate, in July 1992. The report included a statement of skills and values that “are desirable for practitioners to have.”[15] While the task force recognized that law school graduates may not acquire all of the skills in law school,[16] it saw the statement as something that could assist law schools in curricular development, including “[r]evisions of conventional courses and teaching methods to more systematically integrate the study of skills and values with the study of substantive law and theory.”[17] Among the ten skills identified by the report as “fundamental lawyering skills” were problem solving, legal analysis and reasoning, factual investigation, communication, and recognizing and resolving ethical dilemmas.[18]

Despite its lofty goals, a 1995 survey of legal writing program directors indicated that the report did not significantly impact their programs.[19] The 1996 ABA standards, however, did see two changes to Standard 302 that seemed to flow from the MacCrate Report. The first change stated that law schools must offer “an educational program designed to provide its graduates with basic competence in legal analysis and reasoning, legal research, problem solving, and oral and written communication.”[20] The second change directed law schools to “offer live-client or other real-life practice experiences” that “might be accomplished through clinics or externships” but need not be offered to all students.[21]

. . . .

The 2001–2002 ABA Standards did make some significant changes to the teaching of lawyering skills—changes that impacted my law school experience. First, rather than simply requiring that law schools offer a writing experience and skills instruction, the standards were amended to require that students receive:

(1) Instruction in the substantive law, values and skills (including legal analysis and reasoning, legal research, problem solving and oral and written communication) generally regarded as necessary to effective and responsible participation in the legal profession; and

(2) Substantial legal writing instruction, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year.[22]

 . . . .

In the fifteen [now nearly nineteen] years since I graduated from law school, surveys of law students and recent graduates continue to recognize the importance of lawyering skills education and call for law schools to do a better job in teaching lawyering skills. The 2007 Carnegie Report Educating Lawyers called for law schools to adopt an “integrated curriculum” that included “legal doctrine and analysis,” lawyering skills, and professional identity.[23] This suggestion likely stemmed in part from student suggestions “that writing should be ‘more integrated into courses on doctrine’ in order to speed up [their] learning of legal reasoning.”[24] . . .

Despite the importance of these skills, the perception among practicing lawyers is that law schools still are not doing sufficiently teaching lawyering skills. A 2014 survey by BARBRI revealed that only 23 percent of practicing attorneys “believe recent law school graduates possess sufficient practice skills.”[25] While the ABA standards now require students to complete at least six credit hours of experiential learning to graduate,[26] there is still a need, as the Carnegie Report recognized, for an integrated curriculum in law schools that incorporates skills learning into the doctrinal classroom.

This lengthy history shows the Council’s support for skills education—support that is also demonstrated by the Council’s consideration of expanding the number of experiential credits students must earn to graduate. It also shows the importance of not just standalone skills courses, but also incorporating skills into the doctrinal classroom. 

Unfortunately, affording skills faculty a lesser status makes some doctrinal colleagues unwilling to listen to our suggestions for incorporating writing into the doctrinal classroom (or other suggestions for that matter). I recall discussing pedagogical methods in a committee meeting with tenured colleagues and having my suggestions dismissed because legal writing is just different. Ironically, the suggestions came from the doctrinal classes I taught, not my writing course. Sadly, this type of treatment is common.

Formal recognition from the Council and the ABA as a whole that skills faculty deserve tenure-like protections will help eliminate the status-based stratifications that have formed in legal academia. I hope that the result will be more collaboration and an overall better educational experience for our students.

The Revisions Do Not Go Far Enough

 While I appreciate the value of incremental change, and I recognize that law and legal education change at a snail’s pace, the revisions do not go far enough. I encourage the Council to consider requiring law schools to offer complete parity between doctrinal and skills faculty. While tenure-like protections are a good starting point, serving in a clinical tenure position for the past six years has shown me the flaws in a bifurcated system.

First, at many law schools skills faculty perform the same tasks as tenure-track faculty. We teach doctrinal classes, we conduct research, we write books and scholarly articles, we serve on college and university committees, we supervise student notes, and we present at conferences. Many of us are, in fact, national experts in our fields. To use a common adage, if it walks like a duck and talks like a duck, shouldn’t we call it a duck?

Second, while clinical tenure does provide job protections, it also promotes inequalities that negatively affect women and minorities. The University of Arizona offers a type of clinical tenure called continuing status. At the University as a whole, 57.5% of the faculty who hold continuing status or are on the continuing status track are women.[27] This is compared to the 33.3% of women who hold tenure and the 50.9% of women who are tenure-track. The racial disparities are also significant for some categories:

Race/Ethnicity

Continuing or continuing eligible faculty

Tenured faculty

Tenure-track faculty

American Indian or Alaska Native

3.3%

1.2%

1.5%

Asian

2.3%

13%

15.7%

Black or African American

1.4%

1.9%

3%

Hispanic or Latinx

19.2%

7.2%

10.1%

At the College of Law, 13 out of 23 tenure-track faculty are women (excluding faculty that also hold an administrative designation).  On the continuing status side, 21 out of 31 faculty are women.  The racial disparities are not present at the College of Law, with 10 tenure-track faculty and 13 continuing faculty identifying as minorities.

These distinctions between tracks are important, since the mean salary for tenure-track faculty at the College of Law is $190,503, while the mean for continuing status faculty is $119,198. The differential at the University is not as stark, but still present, with the mean salary for tenure-track faculty at $144,315 and continuing status faculty at $106,906.

Thus, while I do strongly support job protections for skills faculty, I encourage the Council to consider if these changes will give skills faculty the full recognition that they deserve, or will it continue to perpetuate disparities that often negatively affect women and minorities.  I would encourage the Council to be a leader on this issue and require schools to offer tenure to skills professors, or, at a minimum, require that the tenure-like positions offer similar compensatory prerequisites.

Thank you for the work that you have done and your consideration of my comments. I look forward to following the Council’s actions on this matter.

Warmly,

Tessa L. Dysart

Assistant Director of Legal Writing

Clinical Professor of Law

 

[1] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181 (Tammy Pettinato Oltz ed. 2021).

[2] Susan M. Case, The NCBE Job Analysis: A Study of the Newly Licensed Lawyer, B. Examiner, March 2013, at 52–56.

[3] Id.

[4] Id.

[5] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181, 183–86 (Tammy Pettinato Oltz ed. 2021).

[6] ABA Standards and Rules of Procedure for Approval of Law Schools, intro. at vi (2013-14) (Am. Bar Ass’n amended 2017–18).

[7]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1978) (Am. Bar Ass’n amended 2017–18); see also Maccrate Report, supra note 1, at 233.

[8]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1981) (Am. Bar Ass’n amended 2017–18).

[9] MacCrate Report, supra note 1, at xi.

[10] Id.

[11] Id. at 380.

[12] Id. at 381.

[13] Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. Legal Educ. 469, 481 tbl.5 (1993).

[14] Id.

[15] MacCrate Report, supra note 1, at 123.

[16] Id. at 125.

[17] Id. at 128.

[18] Id. at 138-140.

[19] Lucia Ann Shilecchia, Legal Skills Training in the First Year of Law School: Research? Writing? Analysis? Or More?, 100 Dick. L. Rev. 245, 261-62 (1996).

[20] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1996) (Am. Bar Ass’n amended 2017–18).

[21] Id.

[22] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (2001–02) (Am. Bar Ass’n amended 2017–18); see also Kenneth D. Chestek, MacCrate (in)Action: The Case for Enhancing the Upper-Level Writing Requirement in Law Schools, 78 U. Colo. L. Rev. 115, 121–22 (2007) (discussing the changes in the 2001 amendment).

[23] William M. Sullivan et al., Educating Lawyers: Summary 8 (2007).

[24] William M. Sullivan et al., Educating Lawyers 104 (2007). In sharing this paper at a faculty workshop at the University of Arizona James E. Rogers College of Law, some of my colleagues noted that formerly, legal writing was taught as part of doctrinal classes and not as a standalone class. While I do think writing should be incorporated into the doctrinal classroom, I do not think that this incorporation should supplant existing first- and second-year legal writing courses, which teach the foundational aspects of legal writing to students.

[25] 2014 State of The Legal Field Survey, Barbri Group, https://www.thebarbrigroup.com/2014-state-of-the-legal-field-survey/ (last visited July 7, 2019).

[26] ABA Standards and Rules of Procedure for Approval of Law Schools § 303 (2014–15) (Am. Bar Ass’n amended 2017–18).

[27] The data contained in this letter was provided to me by the University of Arizona University Analytics & Institutional Research Department.

December 25, 2023 in Appellate Advocacy, Current Affairs, Law School, Legal Writing | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, December 9, 2023

Do We Need a Supreme Court? The Case for Limited Judicial Review

The United States Supreme Court should stop deciding cases involving ambiguous constitutional provisions where reasonable people can differ regarding the meaning of those provisions. In such instances, the Court should defer to the legislature and thus only decide cases that involve clear violations of the Constitution. Otherwise, the Court – as it has done for years – will involve itself in deciding important issues that should be left to democratic choice.

When the Court decides cases where constitutional provisions are ambiguous (and subject to different interpretations), nine unelected and life-tenured judges impose law and policy on an entire nation, often based on nothing more than their policy preferences or the political affiliation of the justices’ current members. If you doubt that, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and returned to the states the question of abortion’s legality.[1] What exactly changed from Roe to Dobbs? The justices’ political affiliations and policy preferences, as Justices Brett Kavanaugh and Amy Coney Barrett (conservative jurists) replaced Justices Anthony Kennedy and Ruth Bader Ginsburg (moderate and liberal jurists, respectively). After Dobbs, it appears that constitutional meaning doesn’t mean anything at all; rather it depends on whether a majority of the Court’s members, at any given time, are liberal or conservative. That reality, which Dobbs underscored, is a recipe for undermining democracy and politicizing the Court, which undermines its institutional legitimacy. If anyone questions how political the Court has become, look no further than the Senate’s confirmation hearings, which beginning with Robert Bork have more closely resembled an episode of Jersey Shore than a meaningful discussion of a nominee’s record and character.

For these and other reasons, the Court should not decide cases (i.e., it should deny certiorari), particularly those involving important social and political issues, when the Constitution provides no clear answer to the question presented. Indeed, the Court’s track record of deciding such cases has been deeply troubling. For example, in Citizens United v. FEC, the Court, by a 5-4 margin, invalidated a statute that restricted independent expenditures by corporations, labor unions, and other entities, and was intended to limit the deleterious and corruptive effect of money in federal elections.[2] Neither the text nor the original purpose of the First Amendment provided clear guidance on the statute’s constitutionality and reasonable people could – and did – disagree on its constitutionality. Why, therefore, did the Court get involved? And why, when the Court did get involved, did it issue a decision that all but ensured that money would continue to corrupt the political process? Your guess is as good as mine.

Likewise, in Clinton v. New York, the Court held by a 6-3 margin that the Line-Item Veto Act, which gave the president the authority, subject to congressional override, to veto certain portions of spending bills.[3] The Act, which was passed on a bipartisan basis, sought to reduce wasteful government spending, and thus promote fiscal responsibility. The Court, however, invalidated the Act, holding that it violated the Constitution’s Presentment Clause, even though the Presentment Clause is so broadly worded that it could arguably be interpreted in different ways. Yet, the Court got involved and invalidated the Act, which hindered Congress’s attempt to reduce wasteful government spending. The reason, again, is anyone’s guess.

To make matters worse, in Griswold v. Connecticut, the Court invented constitutional doctrine out of thin air to invalidate a Connecticut law that banned contraception.[4] Although the law was ridiculous, there was no language in the Constitution that could support invalidating the law. Instead of deferring the legislature, however, the Court held that the Constitution’s text contained invisible “penumbras,” which give life and substance to the text, and from which the justices – and the justices alone – could create unenumerated constitutional rights. Based on this reasoning, the Court created an unenumerated right to privacy under the Fourteenth Amendment’s Due Process Clause even though the text of that clause could not possibly support creating this right. After Griswold, the Court showed no hesitation in “discovering” additional unenumerated rights in its invisible “penumbras,” such as the right to abortion in Roe, which the Court deemed, without any support in the text whatsoever, encompassed within the “right” to privacy. It should come as no surprise that Roe eventually met its demise in Dobbs; when Dobbs was decided, there were more conservative than liberal justices on the Court. That’s the problem with unwarranted judicial intervention and with creating rights out of thin air – it turns law into politics.

Additionally, in Snyder v. Phelps, the Court by an 8-1 margin held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a funeral honoring a soldier who had been killed in Iraq and hold signs stating, among other things, “God Hates Fags” and “Thank God for 9/11.”[5] As Justice Alito emphasized in his dissent, this degrading and demeaning speech had no social value whatsoever and contributed nothing to the marketplace of ideas. Furthermore, nothing in the text or the original purpose of the First Amendment compelled this result. Yet, the Court decided to intervene and reached an outcome that was as abhorrent as the speech it protected.

Similarly, in Kennedy v. Louisiana, the Court held by a 5-4 margin that imposing the death penalty on a convicted child rapist violated the Eighth Amendment’s guarantee against cruel and unusual punishment.[6] What exactly in the Eighth Amendment’s text or based on its original purpose supported this result? Absolutely nothing. But that did not stop the Court from prohibiting legislatures nationwide from authorizing a punishment that many viewed as appropriate for such a heinous crime.

And, of course, one cannot forget the Court’s holding in Students for Fair Admissions v. Harvard, where the Court, approximately forty-five years after Regents of the University of California v. Bakke was decided, suddenly discovered that affirmative action was unconstitutional.[7] Regardless of one’s views on affirmative action, it cannot be reasonably disputed that, like in Dobbs, the only reason that affirmative action met its demise was because the newest justices were appointed by a Republican president. Students for Fair Admissions also highlights the problem with “living constitutionalism”: you never know whether the Constitution will “evolve” a liberal or conservative direction.

These are just a few examples of the Court’s failure to respect the constraints on its power. At times, it appears that Chief Justice Roberts, to his credit, has been concerned about this problem. In National Federation of Independent Investors v. Sebelius, for example, Roberts provided the fifth vote to uphold critical portions of the Affordable Care Act, holding that such provisions were a valid exercise of Congress’s taxing power.[8] Now, does anyone think that Chief Justice Roberts truly believed that the Act’s individual mandate was a tax rather than a penalty? Whatever one’s answer, it was clear that Justice Roberts’ decision was predicated on a desire to protect the Court’s institutional legitimacy and for the Court not to be viewed as politically motivated in its decision-making process. Chief Justice Roberts did the right thing but went wrong when, in Shelby County v. Holder, he voted to invalidate sections of the Voting Rights Act even though the Senate had reauthorized those provisions unanimously.[9] It is precisely this type of inconsistency that undermines the very legitimacy that Roberts seeks to preserve.

Ultimately, the Court’s legitimacy depends on the public believing that the justices’ decisions are based on the Constitution’s text and free from political preference or policy predilection. When the Court intervenes to decide cases where the text is ambiguous and subject to reasonably different interpretations, it often does so, as in Dobbs and Students for Fair Admissions demonstrate, for no other reason than that the justices have the votes to invalidate a law or policy that they don’t like. That is wrong, and citizens of all political persuasions should object to a Court that reserves for itself the right to decide issues that belong to the people and democratic process.

After all, consider the justices themselves. Certainly, they are honorable and incredibly accomplished people. But they are not ordinary citizens. Most of them graduated from Ivy League law schools, grew up in upper-middle class to wealthy households, attended private high schools and elite undergraduate institutions, and enjoyed immense privilege. This does not make them bad people or warrant criticism of them, but it does not make them uniquely suited to decide for an entire country issues that matter so much to (and affect) ordinary citizens. Let the people decide. Give them a voice.

Of course, some may argue that the Court has the authority to say what the law is, particularly where there are circuit splits on important constitutional and public policy issues. That argument is not convincing. First, circuit splits are fairly common, and the Court only decides a fraction of cases where such splits are present, thus allowing many splits to persist. Second, the presence of a circuit split is not always or inherently problematic. Some courts interpret statutes and constitutional provisions differently, and this may lead to varying legal and constitutional protections based on the state or region within which you live. That fact alone does not necessarily lead to injustice or inequality. Some courts, for example, may uphold certain abortion restrictions and others may not, and some courts may hold that the death penalty is unconstitutional while other courts may not. Indeed, just look to state legislatures, where laws and the rights they confer (or restrict) differ substantially. That’s called democracy and sometimes, it’s better to be divided rather than united. People have different views and where the Constitution is silent or ambiguous, those views deserve a voice over those of nine unelected and life-tenured justices.

At the end of the day, when constitutional interpretation is nothing more than a political game, it is a game not worth playing. Without limiting judicial review, we may continue to be haunted by that ghost called “substantive due process,” or those invisible penumbras that lurk in the background, just waiting to strike when enough justices believe in their existence. And be ruled by nine unelected justices who think they can somehow divine the “evolving standards of decency that mark the progress of a maturing society.”[10]

 

[1] 597 U.S. 215 (2022); 410 U.S. 113 (1973).

[2] 558 U.S. 310 (2010).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

[5] 562 U.S. 433 (2011).

[6] 554 U.S. 407 (2008).

[7] 600 U.S. 181 (2023); 438 U.S. 265 (1978).

[8] 567 U.S. 519 (2012).

[9] 570 U.S. 529 (2013).

[10] Trop v. Dulles, 356 U.S. 86 (1958).

December 9, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, November 12, 2023

The Unsettling Politicization of Higher Education (Including Legal Education)

Law schools should train students how to think, write, and practice like a lawyer. They should only admit students, based on LSAT scores and undergraduate grade point average, who are likely to succeed in a law school and the legal profession. And they should produce competent graduates who can pass the bar examination on their first attempt, and who obtain jobs that justify the non-dischargeable debt that graduates often incur.  

To do so, contrary to the views espoused by some scholars, the Socratic method is necessary, as it teaches students the value of, among other things, preparation, thinking on your feet, and performing capably in front of a large audience.[1] And if cold calling causes students stress and anxiety, so be it. Law schools should teach students how to cope with, not avoid, anxiety, pressure, and stress because that will prepare them for the legal profession – and life. Additionally, legal writing courses should be integrated within the law school curriculum and courses should blend doctrine and practical skills to produce marketable graduates. In short, law school is about teaching students how, not what, to think, providing students with real-world skills, and respecting the diverse viewpoints that students of all backgrounds bring into the classroom.

Recently, however, some law schools – and universities – have become so liberal that division and discord have replaced civility and respect, and ideological uniformity has replaced the tolerance of diverse viewpoints.[2] The bias against hiring conservative scholars at many law schools is one example that reflects the liberal bias and discriminatory behavior that pervades some institutions.[3]

Sadly, the current conflict in the Middle East underscores how political – and often extreme – institutions of higher education have become. To be sure, the history of the Israeli-Palestinian conflict is complex. Both Israelis and Palestinians have suffered horribly, and both sides bear responsibility. One would expect that academics, including law professors, would have a balanced view that recognizes the nuances of this conflict and appreciates the diverse points of view that students and citizens express on this tragic situation.

Think again.

For example, despite the torture and murder of Israelis last month, a professor at Albany Law School posted on social media "Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid."[4] Did this professor express compassion for the horror and suffering that so many Israelis endured? No. Additionally, a professor at Cornell University described the attacks by Hamas as “exhilarating,”[5] and a professor at Columbia University described Hamas’ attacks as “astounding,” "incredible,” and a "stunning victory."[6] Not to be outdone, an organization that a New York University professor  co-founded praised “heroic Palestinian resistance.”[7] And an adjunct professor at the City University of New York posed on social media that “Zionists are straight Babylon swine,” who are “racist arrogant bullies” affected by a “genocidal disease.”[8]

In response, major donors at some institutions, including Harvard University, Stanford University, and the University of Pennsylvania, criticized these universities for failing to explicitly condemn Hamas’ attack, with one Penn donor expressing disgust at the university’s “silence in the face of reprehensible and historic Hamas evil against the people of Israel.”[9] Considering the expressed and unrelenting desire of some of Penn’s faculty and administration to fire Professor Amy Wax, one would have expected that Penn’s administration would immediately condemn the torture and slaughtering of countless Israelis. It did not.[10] Given the increasing toxicity in academia, it should come as no surprise that students are so afraid to disagree with their professors.[11]

This troubling reality, namely, academics with extreme viewpoints who show no tolerance for opposing views, is not new.  At Stanford University, former Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach told federal judge Kyle Duncan, who was invited to speak at the law school, that his opinions have “caused harm” thus placating a mob of students who tried to shout down Duncan because they disagreed with his conservative judicial philosophy.[12] Similarly disgraceful conduct occurred when Josh Blackmun, an accomplished and highly respected constitutional scholar, attempted to speak at CUNY Law School, only to be met by students who sought to censor his speech and mischaracterize his views.[13] And consider administrators and professors who, while preaching “diversity, equity, and inclusion,” condemn “whiteness,” embrace segregated living spaces and graduation ceremonies, establish “bias” hotlines where students can anonymously claim to be the victim of “microaggressions,” ban words such as “brave” and “American,” and claim that math is racist.[14]  Sadly, this is only a sample of the concerning behavior that is occurring on college and law school campuses across the country – and dividing students based on, among other things, race, gender, and political affiliation.

***

The deplorable conduct of these and other educators has affected students and inhibited the exchange of diverse viewpoints. For example, Nyna Workman, an NYU law student, refused to condemn Hamas, stating that “Israel bears full responsibility for this tremendous loss of life,” and that Israel’s “regime of state-sanctioned violence created the conditions that made resistance necessary.”[15] Remember that this gibberish was expressed by a student at NYU Law – one of the best law schools in the United States – not at some predatory law school that admits unqualified students, saddles them with non-dischargeable debt, and provides them with no legitimate prospects for long-term employment.  Thankfully, in response to Workman’s disgraceful conduct, Winston and Strawn withdrew her offer of employment.[16]

Likewise, at Harvard University several student groups stated that Israel was “entirely responsible” for the violence.[17] And few can forget CUNY Law School’s student commencement speaker who used her platform to denounce “Israeli settler colonialism” and “the fascist N.Y.P.D.”[18] Additionally, some NYU students were seen ripping down posters detailing stories about Israeli hostages,[19] and a student at Cornell University threatened to slit the throats of Jewish students.[20]  Not to mention, Princeton and NYU law graduate Colinford Mattis, who, along with Urooj Rahman, thought it would be a good idea to throw a Molotov cocktail at an empty police car.[21] This is a sample of what some universities and law schools are producing these days. Indeed, the damage that ideologically driven professors inflict has far-reaching consequences on the students that they serve because it fails to teach students how to think critically, disagree respectfully, and communicate civilly.

To make matters worse, some professors coddle rather than challenge students, placing less emphasis on the development of critical thinking and other real-world skills, and instead indoctrinating them into a worldview where diverse viewpoints are unwelcome, ‘feelings’ matter more than logic, and emotion matters more than reason.[22] Lest there be any doubt, look at the nonsense occurring on many campuses where ultra-fragile students often feel “unsafe” when confronted with a perspectives different from their own and thus demand “safe spaces,” administrators provide “cry closets,” to help students deal with the stress of examinations, or offer Play-Doh to students who could not cope with the results of the 2016 presidential election. [23] And consider the shenanigans at Yale Law School, where a group of ‘offended’ students interrupted a discussion on free speech by a speaker whose views differed from their own.[24] 

Put simply, some academics have placed a premium on identity politics, where one’s group identity matters far more than an individual’s character, and on victimhood, where students are convinced that they are ‘oppressed’ and ‘marginalized.’ As Cornell Law Professor William A. Jacobson stated, “[a]lmost everything now is viewed through an identity lens, pitting groups against each other, pitting colleagues against one another, and pitting students against their peers.”[25]  In other words, the notion of diversity, equity, and inclusion is anything but diverse, equitable, or inclusive.[26]

As Professor Jacobson stated, "[t]here is substantial evidence that such DEI programming makes race and other relations worse, not better.”[27] Moreover, the impact of this divisive nonsense is that it promotes hate and homogeneity of thought, not diversity and a marketplace of ideas. As one professor at the University of California-Berkeley School of Law stated, “if you don’t want to hire people who advocate hate and practice discrimination, don’t hire some of my students.”[28] No wonder our society is divided and riddled with ignorance.

The role of professors is to prepare students for the real world, not to indoctrinate students into a liberal or conservative worldview that is infused which the very implicit and explicit biases that professors often accuse others of harboring. Professors should develop students’ (particularly law students’) critical thinking, writing, and communication skills, and hold students to high standards. They should also ensure that the classroom is a welcoming place for all students, regardless of, among other things, political affiliation, race, gender, sexual orientation or identity, and socioeconomic status. Equally as important, professors should expose students to conservative and liberal viewpoints, and ensure that dialogue is civil and respectful. After all, if diversity, equity, and inclusion mean anything, it should mean that universities respect and welcome views with which they disagree, and that educators dedicate themselves to equipping students with the tangible and intangible qualities needed to succeed in law and life.

Put simply, educators must teach students how to think, not what to think, because teaching is not about professors or their views – it is about the students.

 

[1] See The University of Chicago Law School, The Socratic Method, available at: The Socratic Method | University of Chicago Law School (uchicago.edu)

[2] See, e.g., Robert Leroux, Woke Madness and the University (Winter 2021), available at:  Woke Madness and the University by Robert Leroux | NAS; Lexi Lonas, UPenn Loses Bog Donor, Board Member Resigns Citing ‘Antisemitism,’ (Oct. 16, 2023), available at:  UPenn loses big donor, board member resigns citing ‘antisemitism’;  

[3] See Adam Bonica, et al., The Legal Academy’s Ideological Uniformity (2018), available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[4] Michael Goot, Albany Law Professor Ripped for Praise of Palestinians ‘Tearing Down the Walls of Colonialism (October 12, 2023), available at:   Albany Law professor ripped for praise of Palestinians 'tearing down the walls of colonialism' - WNYT.com NewsChannel 13

[5]   Yarun Steinbuch, Cornell Professor Who Found Hamas Attack ‘Exhilarating and ‘Energizing’ Now on Leave of Absence (Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence (msn.com)

[6]   Tens of Thousands Sign Petition to Oust Ivy League Columbia Professor Who Praised Hamas Terror Attack Against Israel as an ‘Awesome Stunning Victory,’ (Oct. 16, 2023), available at:  Tens of thousands sign petition to oust Ivy League Columbia professor who praised Hamas terror attack against Israel as an 'awesome stunning victory' | Daily Mail Online

[7] Marya Ruth Dunner,   NYU Prof’s ‘Decolonization’ Org Praises ‘Heroic’ Hamas After Brutal Attacks Against Jews (Oct. 11, 2023), available at: Campus Reform | NYU prof's 'decolonization' org praises 'heroic' Hamas after brutal attacks against Jews

[8]  See Juni Nguyen, Some U.S. Professors Praise Hamas’s October 7 Terror Attacks (Nov. 8, 2023), available at: Some U.S. Professors Praise Hamas’s October 7 Terror Attacks | ADL

[9]  Kate Anderon, Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (Oct. 24, 2023), available at: Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (dailysignal.com); see also Judy N. Liu,  Alumni Condemn University’s Response to Hamas Attach (Oct. 31, 2023),  available at: Alumni condemn University's response to Hamas attack (stanforddaily.com)

[10] See id.

[11] See James Freeman, Most U.S. College Students Afraid to Disagree with Professors (Oct. 26, 2018), available at: Most U.S. College Students Afraid to Disagree with Professors - WSJ To be clear, there are many outstanding and inspiring law professors (and professors throughout academia) who are instrumental in helping their students prepare for the legal profession (or whatever profession they pursue). And there are many law schools whose administrations do the same. But that is increasingly becoming the exception, not the rule.

[12] Josh Moody, Dean at Center of Stanford Law Controversy Resigns (July 21, 2023), available at:  Dean at center of Stanford Law controversy resigns (insidehighered.com)

[13]  See  Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled (April 15, 2018), available at:  Guest lecture on free speech at CUNY law school heckled (insidehighered.com)

[14] See, e.g., Paul Farrell, Florida University Adopts Radical DEI Program that Condemns US As a System of ‘White Supremacy,’ (March 1, 2023), available at:  Florida university adopts radical DEI program that condemns US as a system of 'white supremacy' | Daily Mail Online; Seattle Schools Propose to Teach That Math Education is Racist—Will California Be Far Behind? (Oct. 29, 2019), Lee Ohanian, available at:  Seattle Schools Propose To Teach That Math Education Is Racist—Will California Be Far Behind? | ;  Karsten Schneider, New York University Moves to Implement Racial Segregation in Student Dorms (Aug. 24, 2020), available at:  New York University moves to implement racial segregation in student dorms - World Socialist Web Site (wsws.org); Richard Vedder, Racial Segregation on American Campuses: A Widespread Phenomenon (Nov. 15, 2018), available at: Racial Segregation On American Campuses: A Widespread Phenomenon (forbes.com)

[15]  Danielle Wallace, Nonbinary NYU Student Bar Association President Loses Job After Defending Hamas Terror Attack on Jews (Oct. 11, 2023), available at:  Nonbinary NYU Student Bar Association president loses job offer after defending Hamas terror attack on Jews | Fox Business; Tesfaye Negussie and Aisha Frazier, NYU Law Student Who Blamed Israel After Hamas Attacks Defends Remarks (Oct. 25, 2023), available at: NYU law student who blamed Israel after Hamas attack defends remarks - ABC News (go.com)

[16] See id.

[17]  Names and Faces of Harvard Students Linked to an Anti-Israel Statement Were Plastered on Mobile Billboards and Online Sites (Oct. 12, 20203), available at:  Names and faces of Harvard students linked to an anti-Israel statement were plastered on mobile billboards and online sites | CNN Business

[18]  Ginia Bellafante, She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target (June 2, 2023), available at:  She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target. - The New York Times (nytimes.com)

[19]  Krish Dev, Students Caught Tearing Down Israeli Hostage Posters May Face Disciplinary Action (Oct. 23, 2023), available at: Students caught tearing down Israeli hostage posters may face disciplinary action (nyunews.com)

[20]  See Brian Mann, Cornell Student Arrested in Connection with Antisemitic Threats on NY Campus (Oct. 31, 2023), available at:  Cornell student arrested in connection with antisemitic threats on NY campus : NPR

[21]  Jonathan Dienst, Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty Oct. 6, 2021), available at:   Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty – NBC New York

[22]  See, e.g., Yascha Mounk The Real Chill on Campus (June 16, 2022), available at: The Real Chill on Campus - The Atlantic

[23]  See, e.g., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting Up A Generation for Failure available at: The Coddling of the American Mind; Grace Bird, ‘Cry Closet’ Installed for Finals at University of Utah (April 25, 2018), available at: 'Cry Closet' Installed for Finals at University of Utah (insidehighered.com); Jonathan Zimmerman, College Campuses Should Not be Safe Spaces (Jan. 17, 2019), available at: College Campuses Should Not Be Safe Spaces (chronicle.com); Stacy Zaretsky, T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled ‘P*ssies,’ (Nov. 14, 2016), available at: T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled 'P*ssies' - Above the Law

[24]  See Yaron Steinbuch, Yale Law Students Disrupt Bipartisan Free Speech Panel (March 18, 2022), available at: Yale law students disrupt bipartisan free speech panel (nypost.com)

[25]  Louis Casiano, Ivy League School Slammed After Professor Calls Israel Attack ‘Exhilarating’: A Much Deeper Problem (Oct. 20, 2023), available at:  Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[26]  Ryan Quinn White Professor Resigns, Alleges Reverse Discrimination (June 26, 2023), available at: White professor resigns, alleges reverse discrimination (insidehighered.com); Bonica, et al., supra note 3, available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[27] Casiano, supra note 26, available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[28]  Allie Griffin, UC Berkeley Law Professor Urges Firms to Not Hire His ‘Antisemitic’ Students (Oct. 21, 2023), available at: UC Berkeley law professor urges firms to not hire his ‘antisemitic’ students (msn.com)

November 12, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

October 21, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Saturday, October 14, 2023

Tips for New Lawyers

     Starting your legal career can be an uncertain and stressful time. Below are some tips that can help new lawyers successfully transition from law school to the legal profession.

1.    Ask for help.

     If you need help, ask.

     Of course, do not spend your day asking hundreds of questions. Try to solve the problem first and exhaust every resource available to do so. After all, if you approach a partner and say, “I just got an assignment to research defamation law in New Jersey, and I can’t find a single case,” it will not go over well. But when you have exhausted all available resources and cannot resolve the problem, don’t be afraid to ask for help. You are doing yourself – and the firm – a great disservice by trying to figure it out yourself, only to see it become a much bigger problem later.  

2.    Pay attention to the details.

     The little things matter. This includes, but is not limited to, ensuring that everything you write is grammatically correct, free of spelling errors, and cited properly. For example, if your brief is filled with spelling errors, how can a judge possibly trust that your arguments are credible? Focusing on the little things also means, among other things, that the legal authority you cite in a brief or memo is good law, that you follow the local court rules, that you don’t cite ten cases for a simple legal proposition, that you file in the right court or venue, that you cite the record accurately, that you meet deadlines, and that you show up to meetings on time.  

     If you cannot pay attention to the little things, no partner will trust you with the big things.

3.    Focus on developing your writing skills.

     Some, if not many, law school graduates struggle to write effectively and persuasively. This is due in substantial part to the fact that universities (and law schools) do not place sufficient emphasis on developing predictive and persuasive writing skills. It is also because writing persuasively, particularly in the legal context, is difficult. As such it takes time, practice, and repetition to continuously improve your writing skills. It also requires you to embrace the writing process, which entails writing, re-writing, and editing. In short, it is a grind.

     Young lawyers often fail to appreciate the process of what it takes to be an excellent writer, re-writer, and editor. Some believe that a first or second draft is the final draft. Or their standard for what constitutes an outstanding memorandum or brief is far too low. To be a great writer, you must embrace the writing process and go through the hard thinking – the grind – to produce an excellent work product. And you must be dedicated to improving your writing skills throughout your life.

     Put simply, if you don’t put in the work, you won’t receive the outcome that you want.

4.    Be humble.

     As a new lawyer (and as a person), you should demonstrate humility. If you act like an entitled, narcissistic jerk, you will not get very far. If you gossip about your colleagues and supervisors, you will go nowhere because no one will want to associate with you.

     When you are a young lawyer, your focus should be on being an asset to the firm. This means being a team player, and being someone who will sacrifice your time and energy for the firm. Indeed, and particularly if you are working in a large firm, you will likely get assignments that you do not like, or work on cases in areas of law that you despise. For example, a partner may ask you to sacrifice your weekend to review hundreds (or thousands) of documents for relevance or privilege.

     Sure, these tasks are not fun. It’s not pleasant when you plan a mini vacation with your friends or partner, only to find out that your weekend will be spent in the office. However, as stated above, your job is to be an asset to your firm and to demonstrate your value. So, deal with it by having a positive attitude and realizing that your sacrifices in the short term will have tremendous benefits in the long term.

5.    Take feedback well and respond effectively to adversity.

     As a young lawyer, you will make mistakes. You will fail. The worst thing that you can do in response to these realities is to get discouraged. Rather, your colleagues want to know that you can overcome adversity and persevere through challenges. They also want to know that you are a good listener, such that you can receive constructive criticism and use it to improve your work product.

     Experienced lawyers will understand (within reason). But they won’t understand when you make excuses, blame others, or otherwise show a lack of accountability. That shows a lack of maturity. What they will admire is that you learn from adversity and, as a result, become a better lawyer and person.

6.    Exude confidence and don’t apologize too much for mistakes.

     When you make a mistake (and you will), own it. Be honest. Be committed to improving. But don’t apologize for every little thing that goes wrong. And always exude confidence. Being confident engenders trust from your colleagues; insecurity engenders concerns about your poise, ability, and competence.

7.    Don’t focus too much on being successful – understand how to be successful.

     Great lawyers work hard. Very hard. They know that to achieve a certain outcome, you must put in long hours, learn from failure, cope with adversity, and persevere when circumstances are less than optimal.  

     Put simply, they embrace the process of what it takes to be a great lawyer. Sometimes, that means working until 3:00 a.m. on consecutive days to finish a brief or motion or sacrificing a trip to the Michigan-Ohio State game to summarize hundreds of pages of deposition testimony. Yes, this is not fun. It is essential, however, to establish your value and to show that you are a reliable employee who will go the extra mile to achieve the best result possible for the firm's client.

8.    Don’t over-promise or under-deliver.

     Often, young lawyers represent to a partner that they can complete an assigned task by a particular deadline despite knowing that doing so will be next to impossible. Alternatively, they take on too many assignments, which leads to unnecessary stress and missed deadlines. Simply put, they are afraid to say no, for fear that they will lose the confidence of a partner. That could not be further from the truth. Partners appreciate it when you do not over-promise – provided you have a legitimate reason for doing so.

     Of course, when you do take on a project, be sure not to over, not under, deliver. For example, if a partner asks you to draft a memorandum summarizing the elements of defamation, be sure to include in your memorandum the defenses against a defamation claim so that your supervisor can obtain a comprehensive understanding of defamation law.

9.    Show that you have the intangibles.

     A high LSAT score, outstanding critical thinking skills, and a law degree from Yale do not mean that you will be a great lawyer.

     Great lawyers know how to relate to and deal with people. They are not arrogant jerks. They are empathetic. They have common sense. They know how to cooperate, work with a team, and accept constructive criticism. They persevere. They consistently perform well. They are disciplined and focused. They have good instincts and judgment. They communicate effectively. They don’t allow external factors to affect their choices and decisions. And they are the types of people that you would want to have a drink with on a Friday evening.

10.    Understand that being a great lawyer first requires you to be a healthy person.

     If you want to be an outstanding lawyer, you must lead a healthy life that includes balance, a strong mindset, and effective coping skills. This means, among other things, taking care of your physical and mental health, having supportive family and friends, and pursuing interests outside of the law.  

     Simply put, you can’t allow the law to consume you and your life.

***

     Ultimately, remember that no one expects you to be perfect or to immediately perform at the highest level upon graduation. What they do care about is whether you are committed to continual improvement and consistency in performance and are willing to put in the work to become an asset to the firm and an attorney who accepts nothing less than excellence.

October 14, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, October 10, 2023

The Appellate Project

“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]

          The Appellate Project is an organization doing just that.  It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.”  It was founded in 2019 by civil rights litigator Juvaria Khan.  The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field. 

        Their work is incredibly important.  Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii]  The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]

        And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v]  Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi]  Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii]  And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii]  In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]

        The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks.  If you are an appellate practitioner, I urge you to volunteer as a mentor.  And, if you are a student, this is a fantastic opportunity you don’t want to miss.  The deadline for this year’s mentorship program is October 13, 2023. 

 

[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).

[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).

[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).

[iv] Id.

[v] Id. at 49.

[vi] Kastellec, supra n. ii, at 167.

[vii] Id. at 169.

[viii] Id. at 170.

[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”  Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate.  Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/

[x] Ifill, supra n. iii, at 52.

October 10, 2023 in Appellate Court Reform, Appellate Practice, Law School, Legal Profession | Permalink | Comments (0)