Monday, June 17, 2019
While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship. A state or federal appellate clerkship is an excellent stepping stone to an appellate career. But how do you secure an appellate clerkship? Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships.
(1) Get good grades: Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important. If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class. Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.
(2) Be on a journal: For many judges it is important for applicants to have journal experience. Much of the work that appellate law clerks do mirrors journal work. For some judges, high level moot court experience could replace journal experience.
(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships. So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor. And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.
(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse. You can see what the judges do, and hopefully end the experience with a great recommendation. Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society. Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.
(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town. Find those judges, apply to them, and mention the connection in your cover letter.
(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship. That is no longer the case. Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship. If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship. I also know of a student who went from the state supreme court to the federal district court. The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.
(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive. I have met many a state court judge who is better equipped to do this than some federal judges. So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.
(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience. Or, try working for a judge your first summer out of law school. That experience should help you know a little bit what a clerkship would be like.
Good luck to all of the students applying for clerkships right now!
Monday, May 6, 2019
Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt). This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit. Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?
As I recently learned, the answer is no. A few weeks ago, I was listening to judges talk to students about appellate advocacy. One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed. I was surprised by this advice, as I had never heard it before from a judge. I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense. It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction.
Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society. The attorney dons a lapel pin from that organization. As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.
Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court. One listserv member shared a story about an attorney in Ohio who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016. Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"
Without digging into the constitutional issues, the no pins policy seems to be a prudent one. The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey. I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges. My husband was a prosecutor for many years in Virginia. He practiced primarily in juvenile court before the same three judges. After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.
For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Saturday, March 23, 2019
You never get a second chance to make a first impression.
They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.
The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences.
Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions.
Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?
Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important.
For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out:
1. Write with incredible pith at the outset. Top legal writers put their best material in the start.
2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences. So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression.
3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments.
4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body.
5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.
6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff.
Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent."
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do:
If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process).
And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts:
Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.
And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view:
As the district court and the panel majority recognized, we have before us just such an extreme malfunction.
Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch:
The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”
Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept:
Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”
Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.
This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical.
In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft.
Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand":
First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it.
Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority:
The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.
Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance):
It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case.
Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason):
Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.
First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme:
This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I.
Later, Judge Thompson uses a quote from the losing party to trounce their position:
But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.
And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far:
The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.
Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Thursday, March 21, 2019
Each fall, upon entry of the newbie 1Ls to law school classes, it always seems to me like they are getting younger and younger. Most years, the perception is just because I am getting older and older! But this fall, at Southern Methodist University's Dedman School of Law, the youth of at least one new 1L will be very, very young.
Haley Taylor Schlitz is only 16 now, but after her birthday, she will be entering SMU's class of 2022. Obviously a bright young lady, Schlitz was homeschooled, graduated high school at 13, and finishes her undergraduate studies this spring. Schlitz was actually accepted at nine law schools, so this girl is the real deal. She is thinking of entering
I wish this promising young mind well. She clearly has the aptitude for the academic rigor she will encounter, and her young age will add a dimension to the classroom very rarely found.
I expect that many law professors have had the experience of teaching variously aged and experienced students. I often find I am a bit biased toward the older students who have made a change in the direction of their life (I was one of them myself). They bring a lot of diversity of thought to the classroom. In the classes I teach in admiralty and law of armed conflict I especially enjoy when students can add color to what life on a vessel is like, or how being deployed really feels. I often think in my ideal world, every law student would have significant life experience before coming to law school. But is it necessary to become a great lawyer? No, not at all, because I hope we are always learning no matter where we are in life.
Best of luck to Ms. Schlitz and I hope to hear great things from her one day soon. But no pressure!
Monday, February 25, 2019
Moot Court season is upon us. Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics. This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace). Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA. (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional).
This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition. We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.
The University of Houston has already started tabulating the top moot court programs for its rankings. This year the current top 5 is Texas heavy:
- Loyola University
- South Texas
- University of Georgia
- University of Houston
I really love moot court. I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem. Moot court has many benefits for students. While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently. For most moot court competitions, students cannot receive any outside help on their briefs. For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management. Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers. I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice. Moot court does that for law students.
Moot court has benefits for the local legal community too. Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law. Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam. It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around). I also think that moot court gives us hope for the next generation of lawyers. They can, and will, do great things. That is exciting.
But, despite the excitement, moot court isn't perfect. It isn't perfect because we all know that the briefs are way more important than the arguments in real life. It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads. I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge. She clerked for Judge Jerome Frank on the Second Circuit. She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.
So how do gender stereotypes play a role in moot court? Next post I will look at an article on this topic.
Tuesday, February 12, 2019
Last night, I watched On the Basis of Sex with first-year law students. Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972). Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.
On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy. The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument. After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks. Below are some of the lessons learned.
Appellate Practice Is a Lot of Work
Most of the movie occurs outside the courtroom. Students saw Ginsberg meet with Moritz to discuss taking an appeal. They saw her strategize with other attorneys about arguments. She works with her husband, a tax attorney, and her staff and students at Rutgers Law School. She researches, writes, and rewrites the appellant’s brief. When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one. She takes a settlement offer to her client. Before oral argument, Ginsberg practices before a moot court and then before a mirror. Ginsberg works hard. The process takes a long time.
Oral Argument Is a Little Scary
The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit. Students noted how different oral argument looks from the trials they had seen on TV. There is no jury. A lone attorney stands before a panel of three judges. They remarked how Ginsberg was nervous and awkward at first. The judges directed the course of the argument. They interrupted with questions.
The students began to imagine what it will be like when they argue in April. We discussed how preparation goes a long way toward easing nerves. I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society. I encouraged them to practice in front of a mirror like Ginsberg. I shared that it is normal to be nervous, especially for your first argument.
One Case Can Be Two Different Stories
The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code. The law was clear. Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man. Had he been a woman, divorced, or a widower, he would have been eligible for the deduction.
The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case. The IRS portrayed Mr. Moritz as a tax cheat. Ginsberg held him up as a loving and devoted son. The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender. Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.
During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped. Ginsberg picked up on this point during her rebuttal. She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change. Students were struck by this exchange. Each side used the same words to make two very different points.
At the end of the evening, students left our gathering excited, inspired, and a little nervous. I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way. Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers. Through this movie, Justice Ginsberg is still doing just that.
Monday, February 4, 2019
When you are writing an appellate brief or preparing for an oral argument, it is important to keep your audience in mind--the judges (and, let's be real, their clerks). You don't write to impress your client, your boss, our your mom--you write to impress the judges and to get them to decide the case in favor of your client (which will, of course, impress your client, your boss, and your mom). Part of writing for judges means knowing what they want. So, how do you figure that out? Well, for starters, you know that they want shorter briefs. In surveying judges for the third edition of Winning on Appeal, we found that judges overwhelmingly think that briefs are too long. It is the single issue that all judges seemed to agree on. Apart from that, it can be helpful to research the judge or judges that you are appearing before to get an idea of what that judge wants.
How do you research them? Apart from talking to others that have appeared before the same court and judges, there are now some really great computer based tools to help. Today I would like to talk about two such sources.
The first source is Context from Lexis Advance. You can read the Lexis marketing materials on it here. For those of you who are real research nerds (like me), you might better know Context as Ravel's Judge Analytics. Lexis acquired Ravel a year or two ago, and they are continuing to integrate all the cool Ravel computer stuff into Lexis. What can Context tell you about a judge? Well, a lot. In addition to a short bio, you can find that judge's opinions by areas of the law. You can see how the judge rules on particular types of motions (trial judges), and you can see what opinions that judge frequently cites to (and what judges). For example, I searched for the late Justice Scalia. I found that his most cited case was Chevron. Context even shows me the parts of the opinion that he most frequently cited to. His most cited judge was Justice Byron White, followed by Justice Rehnquist and then himself.
Westlaw Next or Edge or whatever we call it now just rolled out a similar product--Litigation Analytics. You can read the Westlaw marketing materials here. Their product seems to have more options (you can search law firms too). I searched for Justice Scalia on Litigation Analytics to see how the results differed. Litigation Analytics has a nice, comprehensive biography of Justice Scalia's career. According to Litigation Analytics, Justice Scalia cited to himself most often, followed by Justices Kennedy and O'Connor. His most often cited case was Payne v. Tennessee. I am not sure what accounts for the differences between the two services, but it might that one includes Justice Scalia's D.C. Circuit service and the other doesn't.
I think that both resources provide valuable insight into anyone writing an appellate brief (or preparing for oral argument). Both services include local judges--I looked up by name a local Pima County Superior Court judge and he was there.
But, apart from their usefulness to appellate attorneys, the services provide another valuable role. They are excellent for law students who might be interested in interning or clerking for a judge. You could get a wealth of knowledge about a particular individual before you step into that interview. I plan on encouraging my students to consult one or the other as they work on their clerkship applications.
Tuesday, November 20, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
A violinist studying to be a professional must practice between four to six hours a day, with at least one hour devoted to studies and simple exercises. Professor Ian Gallacher argues that the same should be true of legal writers—just as violinists must practice the violin every day to become better violinists, so must lawyers practice writing every day to become “more reflective, intentional, and more technically assured, writers.” This comparison is the genesis of Professor Gallacher’s article, “Four-Finger Exercises: Practicing the Violin for Legal Writers,” forthcoming in Legal Communication & Rhetoric: JALWD.
The article begins with a slice of music history, focusing on the origins of Beethoven’s Kreutzer Sonata, “arguably the greatest violin sonata composed.” Professor Gallacher weaves together the sonata’s history with the intersection of Beethoven and Rodolphe Kreutzer, “a very obscure French violinist” who found himself the dedicatee of a sonata that he had never performed or heard of, and George Polgreen Bridgetower, a “violin virtuoso” who was the sonata’s likely intended dedicatee (until he got into a fight with Beethoven over a woman, or so the story goes).
But Kreutzer’s greatest legacy is the collection of 42 studies that he wrote while he was a Professor of Violin at the Paris Conservatoire in the late eighteenth century. Each study requires the violinist to explore a specific element of violin technique in a methodical and careful manner. By using only simple and easily remembered notes, the studies allow the violinist to focus on technique without having to worry about musical expressivity. For example, in the famous second study, Kreutzer number two, the violinist is tasked with fifteen versions, or “incipits,” of the first measure of the exercise in order to perfect her bowing technique. The study is a “complete laboratory for bowing, allowing the violinist a place to work on every conceivable style of bow stroke and configuration.”
Just like violinists, legal writers also need to practice the technical components of their craft. But after the first year of law school, most lawyers never practice their writing again. As Professor Gallacher explains, lawyers “perform writing, but don’t practice it.” This lack of practice is understandable: lawyers are overwhelmed by their billable hours, already churning out and handling a “flood of words.” And yet, for “anyone who seeks to persuade, or attempts to summarize complex information in simple, well-structured, and easily read portions,” fine-tuning one’s writing is essential. Thus, Professor Gallacher sets out to propose the legal writing equivalent of Kreutzer’s studies.
So, what does writing training after law school look like? Professor Gallacher begins by introducing suggestions to consider when completing the exercises that he later proposes. His suggestions—“not rules”—include: (1) stepping away from the law and concentrating on the act of writing itself; (2) experimenting with how fonts and text size may impact your work; (3) practicing for 15 minutes, ideally in the morning; (4) practicing daily, or at least regularly; (5) changing your writing medium to see if it affects your style and quality of writing; (6) changing your writing conditions (music in the background? location?) to see if that affects your writing; (7) identifying your writing routine and your “trigger to creativity”; (8) waiting to review your exercise writings for a couple of days, identifying trends (both good and bad), and, for further reflection, joining other lawyers in a writers’ circle; (9) demanding honesty about the merits of the work and kindness to the writer; (10) identifying your weaknesses and coming up with exercises to work on those weaknesses; and (11) recognizing, and being okay with the fact, that these exercises were designed to develop technique, not to produce artistry.
Professor Gallacher builds on the foundation of these suggestions by proposing ten exercises that, like Kreutzer’s violin studies, are intended to help lawyers improve the distinct components of legal writing. Within each exercise, Professor Gallacher includes alternatives and questions for reflection, pushing lawyers to honestly critique their approach and technique. His proposed exercises range from freewriting, designed to “stretch out writing muscles and prepare you for a day’s writing,” to writing about an engaging piece of art without adverbs or adjectives, designed to have you “write objectively about something that is inherently subjective and emotional in nature.” With just a few minutes a day (ideally, fifteen), legal writers can practice their craft so that when it is time to perform, they are ready.
Legal writing is a skill that, like all skills, must be maintained. Professor Gallacher’s article succeeds in explaining why “simple repetition of performative writing is not enough.” His list of suggestions and exercises are both broad enough to stimulate creativity and narrow enough to provide an “action list” for legal writers who want to get better. The article is a great addition to the reading list of any practitioner, judge, or law student who wants to develop and fine-tune their legal writing abilities.
Special thanks to Alison Doyle for her help with this post.
Thursday, November 8, 2018
Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law
The hierarchy of authority – the ranking of legal authorities within binding/persuasive and primary/secondary categories – is a component of basic lawyering 101. Professor Amy J. Griffin, in her forthcoming article Dethroning the Hierarchy of Authority, however, argues that the conventional view of legal authority as a “hierarchy” is simplistic and fails to adequately capture the complex ways that practitioners and judges select and rely on authority.
Professor Griffin argues that the traditional categorization of legal authority into binary categories that are static is “significantly flawed, and seriously incongruent” with the use of authority in practice. In particular, Professor Griffin focuses on lawyers’ use of persuasive authority – which she calls “optional authority.” This category of authority has drastically expanded in recent years because the internet has made both legal and non-legal information easily accessible. This accessibility has led lawyers and judges to increasingly cite types of information previously unseen in briefs and judicial opinions – information ranging from social science authorities and empirical studies to tweets. Professor Griffin observes that despite this explosion in availability of possible optional authorities to cite, the current hierarchy of authority “offers no means of differentiating between sources as disparate as empirical social science studies and legislative history.” The article warns that without a model governing the appropriateness and authoritativeness of such sources, “the only guard against bias seems to be the adversarial design of the judicial system.”
Although commentators have previously offered suggestions regarding how lawyers should choose which optional authorities to cite in support of their arguments, Professor Griffin states that “no comprehensive view” has been articulated and argues that “we must resist the appeal of a neat objective ranking.” Instead, she proposes a “shift to a holistic, pluralistic view of legal authority.” This pluralist scheme would permit scholars to develop a theory to explain the use of optional authority and would give lawyers a better predictive model of authority. A key role of lawyers is to predict legal outcomes for clients. If lawyers do not have a theory to explain why judges choose to rely on certain optional authorities over others, then making those predictions becomes significantly more difficult. Although Professor Griffin does not offer a scheme, her article raises interesting and important questions about the weight of authority in a world where lawyers now face more choices of authority than ever. Professor Griffin concludes that “[w]e need a wider lens and more flexible framework” that permits a deeper exploration and understanding of the complexities of the weight of authority.
Thursday, September 27, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.
In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.
Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.
Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.
So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.
Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.
First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”
The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”
To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.
I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.
Special thanks to Alison Doyle for her help with this blog post.
[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).
September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)
Thursday, September 13, 2018
Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law
When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners. An end to the tyranny of The Bluebook! A coup de grace!
And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.
Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?
Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual. The only difference is that you'll be able to understand and use the ALWD Manual!”
This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.
Thursday, August 30, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”
What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.
In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”
So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.
Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.
There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.
Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.
Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”
Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.
Thursday, August 16, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.
Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.
At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:
As you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.
Thursday, August 2, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.
To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”
Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.
Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.
Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.” The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.
 W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).
 Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).
Thursday, July 19, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem? Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.
Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.
The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns. Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.
Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.
The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.
Thursday, July 5, 2018
Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School
Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.
Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.
Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.
Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.
Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.
Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.
Thursday, May 24, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.
Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.
However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical.
Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.” In the chapter he categorizes types of narration one might do in a parenthetical:
- Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
- Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
- Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
- Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).
In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals. That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.
Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.
Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.
What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.
 You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals
 Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper.
Thursday, May 10, 2018
Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School
The big news this week in field of law and typography was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.
But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.
Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones. In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.
Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead. You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.
And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.
So, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?
 Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).
 There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.
May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)
Monday, April 30, 2018
Forget football and basketball rankings, for many law schools it is the moot court rankings by the University of Houston Law Center's Blakely Advocacy Institute that we wait for each year. Just a few days ago the final rankings were released. The top five schools are as follows:
1. South Texas College of Law Houston (alas, I cannot find a nickname or mascot for you--but great job!)
2. Chicago-Kent College of Law (Affiliated with Illinois Institute of Tech--Go Scarlet Hawks!)
3. Baylor University Law School (Go Bears!)
4. University of Oklahoma College of Law (Boomer Sooner!)
5. NYU Law School (Go Violets? Go Bobcats?)
As usual, the top 16 teams will compete at the Andrews Kurth Moot Court National Championship. The Sooners are the current champs, so we will see if they can hold on to the title this year.