Saturday, January 23, 2021
Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing. In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques: (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts. I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing. Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words: “Tonya Harding skates.”
Of course, I am always looking for new samples. Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter. In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts. See AWS Opp. to Parler's TRO Request. The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.
Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:
This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens.
Id. at 2. The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.” Id.
The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument. As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:
- Parler Conducts the “Absolute Minimum” of Content Moderation.
- Parler Enters an Agreement with AWS for Web Hosting Services.
- Parler Repeatedly Violates the Agreement.
- AWS Exercises Its Right to Suspend Parler’s Account.
AWS Opp. to Parler's TRO Request at 2-5.
Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision. It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader. While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story. For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives. The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’” Id. at 2-3. This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.
As appellate practitioners and writing teachers, we all benefit from reading each others’ work. I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing.
Saturday, January 2, 2021
Many of my younger students come from collegiate writing programs which do not use Oxford commas. These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more. This comma, known as a serial or Oxford comma, can change meaning. Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.
The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility. See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html. Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement. The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay. Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation. (For more laughs, really, I highly recommend one of my family’s favorite books: Lynne Truss, Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)
Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers. Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/. As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’” Id.
While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing. As Gurnett concludes: “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.” Id.
Last week, Pocket republished Chris Stokel-Walker’s article on serial commas. Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab. In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies. As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.” Id. He provides great examples to remind us about the need for precision.
First, Stokel-Walker cites the United States Tariff Act. As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs. However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.” Id. Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime. Id.
Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial. Id. In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act. Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.” Id. As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free. Id. Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown. Id. Unfortunately for Casement, the court applied the comma and ordered him executed.
Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.
Happy new year!
Saturday, December 26, 2020
Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.
Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.
Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.
The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…
Here is an example:
Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”
The defendant’s comments were defamatory for three reasons. First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.
After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.
Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.
Why is the Rule of Three so effective?
1. The Rule of Three simplifies your arguments
Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.
The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.
2. The Rule of Three organizes your arguments
The worst briefs are often those that go on…and on…and on…
The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.
The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.
3. The Rule of Three appeals to the audience’s cognition and psychology
Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?
Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.
The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere. In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.
Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.
Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.
Below are a few videos regarding the Rule of Three.
 Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)
Sunday, December 13, 2020
Tired of online court, school, happy hour, family holidays, and more? Me too. However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve.
Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court. As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.
Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument. You can see his blog here: Judge Pierre Bergeron's Tips. He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.” Id. These tips apply equally to in-person arguments.
Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general. See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020). As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.” Id. Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.
Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico. See id. Thus, “preparing a presentation ahead of time is still crucial.” Id. Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam. See id. I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom.
Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire. Alder recommends: “Dressing properly means wearing professional attire from head to toe, not just head to waist.” Id. “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.” Id. The key: “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said. Id.
We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges. This lesson matters even more for online arguments, where the format makes true eye contact impossible. To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal. Id.
Finally, we all need to be more attentive to virtual context clues in online arguments. “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.” Id. Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said. Id. As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’” Id. And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question.
In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world. I know many law students and lawyers feel the same way. But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.
December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Sunday, August 9, 2020
Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.
By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections. As Roberts stated during his confirmation hearing:
A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.
Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions, and thus reach decisions that would favor conservative policy positions.
They were wrong.
Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation. To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act. In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster. Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act. And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office. The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.
In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome. Chief Justice Roberts’s decision was surprising in many respects. Specifically, Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.” Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided. Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity. Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.
Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.
All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:
[A] much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.
So what is going on here?
The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.
Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.
It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”
 Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
 567 U.S. 519 (2012).
 See id.
 570 U.S. 529 (2013).
 572 U.S. 185 (2014).
 136 S. Ct. 2292 (2016).
 Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts
 138 S. Ct. 2448 (2017).
 140 S. Ct. 1731 (2020).
 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
 Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
Wednesday, July 29, 2020
This has, out of necessity, been a busy summer for the law school advocacy community. Some exciting and important developments this week:
Guidance for Conducting Moot Court Competitions in 2020–21: Throughout this summer, a group of advocacy professors and coaches coordinated by Rob Galloway, the Associate Director of Appellate Advocacy at South Texas College of Law Houston, has met weekly to discuss issues related to running moot court competitions and programs in the COVID era. This week, the group published a comprehensive set of recommendations for administering moot court competitions in 2020–21. The document is signed by 78 advocacy teachers, many of whom also administer interscholastic and intramural competitions. It offers insights complied by three working groups on handling competitions in These Challenging Times. Like the best-practices guidance for courts published recently by the American Association of Appellate Lawyers, the document stresses that competition organizers should strive to bring as much normal as possible into the new normal: make COVID-era competitions as much like what we're used to as we can. But, as those of us who've administered virtual arguments and competitions have discovered, doing this well requires thoughtful adaptation. The document give soup-to-nuts advice on how to adapt competition rules and procedures without digging unduly deeply into the technological weeds. If you or someone you care about runs a moot court competition, I respectfully urge you to read it and to follow up with our group if there's anything we can do to help.
The National Online Moot Court Competition: The pandemic has prompted a consortium of law schools—inspired in part by pioneering efforts in the trial-advocacy community—to create a new moot court tournament. Registration is open now. The registration form is accessible here; the rules here; the proposed competition timeline here. It is especially cool that this competition is built from the ground up as a virtual competition. Schools that register will receive a technology package designed to make sure that all teams compete on a level virtual playing field. The competition's rules and design thoughtfully incorporate the practices I discuss above. This is not surprising; the representatives of the schools sponsoring the tournament were active in producing the guidance. And, more generally, the tournament looks to incorporate general best practices for moot court: advocates will argue in four preliminary rounds and will be guaranteed a large, well-qualified pool of brief scorers and oral argument judges.
The new leaders of the National Association of Legal Advocacy Educators: I posted three weeks ago about the election of officers for this new organization. It is done. The group's prospective members have voted on an excellent slate of candidates. As was inevitable, they have chosen a great board that brings together advocacy professors and coaches with deep and wide-ranging experience:
- President: Rob Galloway, South Texas College of Law Houston
- Vice President: A.J. Bellido de Luna, St. Mary's University School of Law
- Secretary: Megan Chaney, Shepard Broad School of Law–Nova Southeastern University
- Treasurer: Robert Little, Baylor Law School
- Regional Representatives:
- Tim Wilton, Suffolk University Law School
- Joanne Van Dyke, Syracuse University College of Law
- Jodi Hudson, Seton Hall School of Law
- David Johnson, George Washington University School of Law
- Jennifer Franklin, William & Mary Law School (and the Appellate Advocacy Blog)
- Suparna Malempati, Atlanta's John Marshall Law School
- Jennifer Copland, Michigan State University College of Law
- Judge Jim Roberts, Samford University's Cumberland School of Law
- Ana Montelongo, IIT Chicago-Kent College of Law
- Patricia Wilson, Baylor Law School
- Michaelle Tobin, University of Missouri–Kansas City School of Law
- Laura Rose, University of South Dakota Law School
- Judge John Madden IV, University of Denver Sturm College of Law
- Spencer Pahlke, UC Berkeley Law
- Susan Poehls, Loyola Law School
Saturday, July 25, 2020
Tired of seeing yet another post on how to ______ [fill in the blank: teach, write, argue, live] in our new virtual reality? Exhausted from never leaving your home and Zooming all day? Me too.
In fact, I was reluctant to write one more blog on online writing tools. However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom: Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/. These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others. They also reminded me how much any law practice can increase attorney writing skills by using peer review. See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011) https://eric.ed.gov/?id=EJ933615
As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners. While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice. When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer. Eli Review has a nice blog post on this “giver’s gain.” https://elireview.com/2017/03/28/givers-gain/.
My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors. Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation. However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work. This review can actually save fees, by shortening partner review time, and can help create better briefs across the board. And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.
In the digital classroom, we can use technology to enhance the peer review process. Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community. Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo. Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.
From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment. Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades. The whole process can be anonymous. Professors using these programs raved about the technical support and positive student feedback from both. Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year.
The genius in each product is the science and math behind the assessment scores and review prompts. Each product truly helps students grow as writers by combining the established science on peer review and some neat online features. The math and engineering majors in my home called the programs “elegant.”
For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review. Then, each student grades the reviews he or she received on a 1-7 scale. Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score. The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review. Peerceptiv docs points when a review or assignment is late. See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.
If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review. Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments. Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars. See https://elireview.com/learn/how/. This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work.
This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring. I plan to use Eli Review only for anonymous, ungraded work. My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems.
Thanks for reading another note on online writing tools. I wish you all good health, and a safe trip outside sometime soon too.
Saturday, July 11, 2020
We are thrilled to welcome Professor Susan Smith Bakhshian of Loyola Law School Los Angeles as our guest author. Susan has taught LRW and doctrinal law for many years at Loyola, where she is a Clinical Professor of Law and Director of Bar Programs. She is the co-author of Clearing the Last Hurdle: Mapping Success on the California Bar Exam. This summer, she taught entirely online using Brightspace and Zoom. You can reach Susan at email@example.com.
Caution Ahead: Breakout Groups Can Fail
Breakout rooms are great. But. Wait for it. They can fail. Break out rooms are terrific for everything from a way to let students chat and get to know each other, to in class exercises and writing assignments. And the experience is usually great.
Breakout rooms are not a substitute for physical classrooms, but they can give students a few minutes to socialize, provide variety in instruction, and accomplish learning objectives.
So when do breakout rooms go wrong? Groups can go wrong a variety of ways. While the tech can fail, which is a new problem, the other failures are nothing new. A student may decline to participate fully. Group dynamics can unravel. Disputes can arise.
An ounce of prevention is worth a pound of cure. Groups need clear instructions to stay on track. Using a slide in class or posting a handout before class goes a long way to making sure students understand that breakout groups are real assignments and not a class break. By posting slides before class, shy or anxious students are able to preview the group assignment and more fully participate in class.
Pop in. Video conference software simulates walking around the room. Once students realize the professor might drop in the group, they stay on track. This feature is especially helpful when I see that the random assignment has created a group of several weaker students or one with too many natural leaders. I usually go to those groups first. Even if all of the groups are doing fine without any help, I also just like to say “hello.”
Require a deliverable. If the groups know going into the exercise that a written product is due or that anyone in the group may be called on, they will stay on task better. Formal and informal deliverables both work well. Ask for each group to craft an email to the professor, require a post, or ask the group to return to the full class ready to answer a question or present their best ideas.
For those who have not tried a breakout room, an easy, but effective assignment is to have the groups make a list of best (and worst) practices for online learning. They have great tips for each other ranging from natural lighting solutions to how to use the “hide my video” feature to get more comfortable being on video. This assignment works as an ice-breaker in an early class or anytime you want to cover professionalism. As attorneys, they will need to be proficient at using video conferencing software, even after a return to more live interaction. A quick mention that job interviews may be online gets everyone in the group more interested in discussing best practices.
Bottom line, breakout groups are flexible and effective in online teaching.
Wednesday, July 8, 2020
For the past couple of years, members of the law school advocacy community have worked to create an organization that represents the interests of legal advocacy educators. It's almost here. We have a name: the National Association of Legal Advocacy Educators. We have bylaws. And soon, we'll have officers.
Hence this post. To move things forward, the organization will launch elections this week for its inaugural executive board and regional representatives. Anyone who is interested in and eligible to become a member of NALAE may vote. And membership is open to anyone who is currently an advocacy teacher at the law school level. As the bylaws state, that definition is broad: "an 'advocacy teacher' is any person who is engaged in teaching trial advocacy, appellate advocacy, alternative dispute resolution, client counseling, or any other skills related to litigation and trials, at the law school level. This definition includes tenurial, tenure-track, non-tenurial, and adjunct professors as well as those who coach law school teams that compete in these fields."
If you're currently an advocacy teacher at the law school level and you'd like to vote, please register via this link as soon as you can. When you access the registration form, you can check out answers to frequently asked questions about the organization and elections. NALAE's Election Committee will host an online candidates' forum tomorrow (Thursday, July 9) at 7:00 pm, and we'll send a link to Zoom event to all registered voters.
I am excited to see this organization come together, particularly now. This summer, the national communities of appellate advocacy, trial advocacy, and dispute resolution teachers, coaches, and competition organizers have worked hard to respond to the challenges our students face in learning and competing virtually. We're seeing what's possible when we collaborate. NALAE will help our communities realize a broad, deep range of possibilities. The organization's goals:
a. To encourage the expansion and improvement of and diversity in student-focused law school advocacy skills education;
b. To support innovation through communication and dissemination of information among law school advocacy programs;
c. To improve the quality of competition experiences to best teach skills and professionalism;
d. To work cooperatively with other organizations interested in advocacy skills education, the improvement of legal education, and the improvement of client representation;
e. To promote conferences and other educational activities designed to facilitate the other purposes of the organization;
f. To further the interests of all law school advocacy skills teachers; and
g. To promote access to justice, including the right to jury trials, fair and equitable dispute resolution, and the rule of law.
Sunday, June 7, 2020
The death of George Floyd was tragic and appalling. The video that showed Officer Derek Chauvin’s knee on Floyd’s neck for almost nine minutes was disturbing. Sadly, many unarmed African-Americans have been fatally shot by law enforcement, and although most officers have been acquitted of criminal conduct based on these events, they have been tragic and involved the questionable, if not unnecessary, use of force.
This is not to say that the majority of law enforcement officers are bad people. Most strive to – and do – protect their communities. But the events this past week have rightfully renewed a call to address problems in the law enforcement community and issues related to inequality. Below are a few thoughts regarding how to address the broader issue of inequality and achieve a society where equal opportunity exists for all citizens.
I. Focus on Institutional Corruption, not merely Institutional, or Systemic, Racism
There can be no doubt that racism and discrimination exist throughout the United States. Indeed, the legacy of, among other things, slavery, segregation, and Jim Crow have caused incalculable social and economic harm to African-Americans that continue to this day. As such, achieving equality and eradicating discrimination in all of its forms is a moral and categorical imperative.
To do so, however, it is not sufficient to rely upon an overly general assertion that the United States is currently an institutionally or systemically racist society. Although institutional racism certainly existed for much of this country’s history, it does not exist to nearly the same degree in contemporary society. For example, federal and state laws outlaw discrimination. Public universities have prioritized diversifying their student bodies and faculty. Private employers have made laudable efforts to diversify their workforces. Affirmative action programs have increased access to education for traditionally disadvantaged groups. This is merely a representative sample of the efforts reflecting a commitment to equality of opportunity and evincing a condemnation of practices that, by design or in effect, discriminate against particular groups.
Of course, although institutional racism is no longer ubiquitous, there can be no doubt that some institutions remain racist or, at the very least, retain policies that disparately impact traditionally marginalized groups. Accordingly, the best path to achieving equality would be to identify, at the county, state, and federal level, the specific institutions that remain institutionally or systemically racist – and to develop workable policy prescriptions to remedy the infirmities in these institutions. Put differently, it does little, if any, good to recite the proposition to institutional or systemic racism exists because these terms are overly broad and thus make it difficult to develop workable and sustainable remedies for specific problems.
Additionally, scholars and policymakers place insufficient emphasis on institutional corruption. This concept, which was developed by Harvard Law School Professor Lawrence Lessig, states as follows:
Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.
Simply put, institutional corruption does not involve violations of the law. Rather, it refers to the degradation of an institution’s underlying values, and how the institution’s actions, although not illegal, undermine the public trust.
The United States Department of Justice’s investigation into the tragic death of Michael Brown – and the Ferguson Police Department – is instructive. The Department cleared Officer Darren Wilson of wrongdoing but, in so doing, found that the Ferguson Police Department was institutionally corrupt. That is, although the Ferguson Police Department did not engage in illegal activity per se, its policies and practices disproportionately and unfairly impacted African-American residents, thus highlighting the need for principled reforms.
II. Focus on Crime Prevention by Addressing the Underlying Causes of Criminality
There can be no doubt that reforms to policing practices (and legal doctrines, such as qualified immunity) are necessary in some jurisdictions to ensure that police brutality ends and that the lives of African-American suspects (and all suspects) are not needlessly lost. This may include eliminating specific physical restraints, making changes to police training methods, and revisiting the qualified immunity doctrine.
But such reforms are not enough.
Legislators and policymakers must address a critical issue that has nothing to do with law enforcement – the underlying causes of criminality in the African-American community (and all communities, for that matter) – and strive to reduce criminal behavior.
Regarding this issue, the landmark report of former Senator Daniel Patrick Moynihan is also instructive, albeit controversial. In that report, Senator Moynihan found that, by the mid-1960s, nearly half of African-American families were in the middle class. In subsequent years, however, that progress stalled. Senator Moynihan posited that the decline of the nuclear family and the increase in single-parent families contributed to this problem as part of a “tangle of pathology,” which included “delinquency, joblessness, school failure, crime, and fatherlessness.” These factors, Moynihan concluded, created a “self-perpetuating cycle of deprivation, hardship, and inequality.” Decades after its publication, the Urban Institute revisited Senator Moynihan’s report and concluded that African-Americans “still suffer from the intersecting disadvantages that Moynihan called a ‘tangle of pathologies,’ with each negative factor reinforcing the others.” Specifically, the Urban Institute noted that children “born into single-mother families [approximately 72% of African-American children] are far more likely to be poor and persistently poor than children born into two-parent families,” and that “[h]igh-poverty neighborhoods suffer from high rates of crime and violence, poor schools, and weak connections to the labor market.” Consequently, these factors may be responsible, in part, for criminality and inequality of opportunity.
But the Moynihan Report’s findings do not tell the whole, or even most important part, of the story. Perhaps the most deleterious effect of the systemic discrimination that continued until the mid-twentieth Century was the disparity in the quality of education at the grade and high school levels. To make matters worse, in San Antonio School District v. Rodriguez, the United States Supreme Court held that the funding of public schools based on property tax revenue did not violate the Fourteenth Amendment. The practical effect was far-reaching and long-lasting: children from wealthy neighborhoods received a better education than children from poor neighborhoods. That, in a nutshell, made equality of opportunity illusory for poor children of all races. As the Urban Institute noted, “[y]oung people from high-poverty neighborhoods are less successful in school than their counterparts from more affluent communities: they earn lower grades, are more likely to drop out, and are less likely to go on to college.”
Make no mistake: racism is and continues to be part of the problem. Indeed, the Urban Institute noted that “race remains a factor in determining economic opportunities and outcomes,” and that “aggressive enforcement of antidiscrimination statutes as well as affirmative action policies are required to ensure equal opportunity.” Police brutality, of course, is also a problem, and the recent protests are a testament to citizens’ rightful anger, at such brutality although those citizens who engaged in violence and other criminal activity should not be considered protesters in any sense whatsoever.
But the path to equality requires policymakers and scholars to do far more than focus on law enforcement. For the promise of equality to become a reality for all citizens, researchers and scholars must develop policies that address community and family issues, and that remedy the disparities in education at the grade and high school levels.
III. Reform Federal and State Sentencing Guidelines – and Reentry Programs
At the federal and state level, sentencing guidelines often authorize the imposition of unnecessarily long and unprincipled sentences. Additionally, during incarceration, the criminal justice system often provides inadequate support and treatment for mentally ill inmates. And upon release, these individuals, many of whom are members of traditionally disadvantaged groups, have deteriorated substantially and lack the social and economic support to successfully reintegrate into society. Not surprisingly, they frequently engage in criminal conduct and return to prison, where the cycle continues.
Thus, reforming sentencing law to enhance rehabilitation-based programs for inmates – and prioritize support for inmates upon release – is critical to reducing crime.
IV. The Millennial Sequence
The path to the middle class – and away from criminality – is attainable for citizens of all backgrounds. Specifically, the American Enterprise Institute has found that, among millennials, “getting at least a high school degree, working full-time, and marrying before having any children,” facilitates upward mobility into the middle class:
[The] divergent paths toward adulthood are associated with markedly different economic fortunes among Millennials. Young adults who put marriage first are more likely to find themselves in the middle or upper third of the income distribution, compared to their peers who have not formed a family and especially compared to their peers who have children before marrying … This pattern holds true for racial and ethnic minorities, as well as young adults from lower-income families. For instance, 76% of African American and 81% of Hispanic young adults who married first are in the middle or upper third of the income distribution, as are 87% of whites.
In fact, this sequence is almost certain to reduce, if not eliminate, the likelihood that an individual will live in poverty:
97% of Millennials who follow what has been called the “success sequence”—that is, who get at least a high school degree, work, and then marry before having any children, in that order—are not poor by the time they reach their prime young adult years (ages 28-34). The “success sequence,” so named by Brookings Institution scholars Ron Haskins and Isabel Sawhill, has been described as the path into adulthood that is most likely to lead towards economic success and away from poverty.
The problem, however, is that “young adults aged 28 to 34 from lower-income families are about half as likely to have completed the success sequence, or be on track with the sequence, compared to their peers from upper-income families.”
This short article cannot capture in sufficient detail the many issues relevant to inequality. Ultimately, however, and perhaps most importantly, the solution to this problem requires citizens of all races and backgrounds to come together in a spirit of reconciliation, with a commitment to eradicating racism and discrimination, and with an openness to diverse perspectives. It does no good to maintain an almost-exclusive focus on, for example, white privilege (the extent of which cannot be quantified and differs based on intersectional factors), and implicit bias (which evidence suggests does not correlate with biased behavior). These arguments rightfully identify problems impacting inequality, but without more, they have no practical impact on improving the day-to-day lives of African-Americans. If anything, now is the time to come together and recognize that what we have in common far outweighs that which we do not, and to collectively devote our efforts to achieving equality – and equal protection of the law – for all citizens. After all, what happened to George Floyd, and many others, should never happen again. The United States Constitution guarantees equality for all citizens and whenever the effects of inequality manifest – as they did in Minneapolis – the Founders’ vision for a more perfect union vanishes.
 Institutional racism is generally defined as state-sponsored policies that discriminate against or disproportionately impact traditionally marginalized groups.
 Edmond J. Safra, Institutional Corruption, available at: https://ethics.harvard.edu/lab
 See United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at: https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf
 Kay S. Hymowitz, The Black Family: 40 Years of Lies, (2005), available at: https://www.city-journal.org/html/black-family-40-years-lies-12872.html
 Gregory Arcs, The Moynihan Report Revisited (June 2013), available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF
 411 U.S. 1 (1973).
 Arcs, supra note 6, available at: available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF\
 W. Bradford Wilcox, The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ Among Young Adults (June 2017), available at: https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/
Sunday, May 31, 2020
Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.
Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.
I. The Drafting Stage
The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.
In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.
After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”
II. The Rewriting Stage
The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:
- Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
- Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
- Eliminating unnecessary repetition;
- Eliminating irrelevant facts;
- Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
- Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.
Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.
III. The Revision Stage
During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:
- Making paragraphs and sentences shorter;
- Varying sentence length;
- Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
- Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
- Including transition words to ensure flow and clarity;
- Eliminating words that convey ambiguous or unintended meanings;
- Reducing the number of quotes;
- Deleting repetitive sentences;
- Eliminating cliché phrases and colloquial language;
- Ensuring that your brief is written in the active voice (for the most part);
- Using the CTRL+F feature to search for overused and unnecessary words; and
- Submitting your document to an online editing service, such as Grammarly.
Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.
Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.
Monday, April 27, 2020
Nearly a lifetime ago (ok, it was just a month ago), I posted tips on how to conduct a virtual moot court competition. Since that post we have had some other great posts on remote oral argument and presentation, including these tips from Texas Supreme Court Justice Eva Guzman.
We held the final round of our moot court competition on April 16. Based on that experience, and a few other things I learned along the way, I thought I would offer my final thoughts and tips on virtual moot court competitions, in case we are all doing this again in the fall.
(1) Stagger start times. For our competition, we typically had two separate panels of three judges. Each panel heard two arguments--one starting at 5:30 pm and one starting at 6:30 pm. In my earlier suggestions, I recommended having separate Zoom links for each argument even if the panel was the same. That definitely worked well. But, if I could do it over, I would have had one panel start either 15 minutes earlier or 15 minutes later than the other panel. Why? Well, I "zoomed" into the first argument for each panel, just to make sure that the judges were present and that there weren't any questions. I ended up having one Zoom open on my laptop and one open on my tablet. This was a lot to manage, especially if there were issues that needed to be resolved. A 15 minute staggered start time would have alleviated some of my stress.
(2) Have back-ups. I wish that I had designated a back-up bailiff and judge for each round. We only had one judge who wasn't able to make it, but we did have bailiff sound/video issues. I was able to get those issues resolved with minimal delay, but having a designated back-up would have been even easier.
(3) Develop an online scoring survey. We ask our judges to fill out a fairly detailed score sheet. I take the scores and enter them into a complicated spreadsheet that incorporates the judges' scores and the student's brief score. When we have an in-person competition, I can look at the score sheets right away and identify anything that isn't filled out correctly. For an online competition, I had to wait to receive the score sheets. Then, if there were any problems, I had to get in touch with the judges. This wasn't an issue with the early rounds, but by the eliminate rounds, I needed to notify the students advancing quite promptly. If we do this again, I will work with our IT department to develop some sort of online tool that the judges fill out instead. This would hopefully help me get the scores sooner, and also ensure that the score sheets are completely filled out.
In addition to these general points, here are a few points from the final round:
(1) Use and circulate a background. The version of Zoom on my home laptop allows me to use a background without a green screen. I wish that I had circulated a background to the students and judges to use to make it a little more uniform.
(2) Figure out an online timer. I didn't use an online timer. Rather, my plan was to hold up time cards. I regret that choice. The time cards didn't show up with the background, so I ended up holding up fingers instead. I wish that I had tested the time cards to know that they wouldn't work. Then I would have definitely figured out how to put a small clock on the screen.
(3) Expect the unexpected (or be sure to lock your office door). Our final round started at 5:30 pm on April 16. I had told my spouse in the weeks leading up to the final argument that he would be on toddler duty all night long. I ordered dinner to be delivered, and reiterated to him right before the round began that I was unavailable. Well, as luck would have it, at about 5:50 pm my very tall, just turned 2 year old discovered how to open doors. And, as I am sure that you have guessed, the first door that he opened was the one right into my office as the Respondent was arguing. My microphone was muted, and the background kept him mostly hidden, but he was still a bit visible (as was my husband who, with a look of horror on his face, tried to quickly remove him from the scene). In hindsight, it was pretty humorous. I wasn't able to keep a poker face on while it happened, which I felt bad about. Now I know to lock my office door if I don't want to be disturbed.
Sunday, April 19, 2020
In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.
Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome.
Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.
1. Tell a story
In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:
When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,
When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”
The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.
Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language.
Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.
2. Don’t be argumentative
One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.
3. You can – and should – still advocate
Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.
4. Acknowledge unfavorable facts
Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.
5. Eliminate irrelevant facts
You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:
The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.
6. Describe the record accurately
Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.
7. You can include law in the facts if it's appropriate
When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:
On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.
As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.
8. It's not just what you say, but how you say it
Be sure to draft a well-written, well-organized, and concise statement of facts. For example:
- Avoid long sentences (over twenty-five words)
- Avoid complex or esoteric words (and Latin)
- Use transition words to ensure flow and clarity
- Avoid unnecessary repetition
- Avoid long paragraphs (paragraphs should be approximately three to five sentences)
- Eliminate unnecessary adjectives and minimize the use of adverbs
- Avoid nominalizations
- Never insult the lower court or your adversary
- Ensure that your brief is free of spelling errors and grammatically correct
- Know when to break the rules to maximize persuasion
Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.
Sunday, April 12, 2020
Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.
Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.
1. Make sure that you are positioned correctly
When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.
First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.
2. Choose a professional background
Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.
Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.
3. Avoid Unnecessary Physical Gestures
When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.
4. Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format
In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority.
5. Follow all of the rules regarding oral argument as if you were giving the argument in person
You should approach online and in-person oral arguments in the same way. For example:
- Have a powerful introduction and roadmap
- State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
- Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
- Answer the judge’s questions directly
- Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
- Always be honest – never mislead the court or attempt to hide unfavorable law or facts
- Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives
6. Be prepared for technical issues
Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.
7. Remember that this is new for everyone
Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.
Sunday, March 29, 2020
The spread of the coronavirus has resulted in law schools transitioning to online learning. The delivery of legal education online certainly presents challenges for law students and legal writing professors (and professors generally). Below are tips (some rather obvious) that can hopefully contribute to facilitating a reasonably smooth transition to teaching legal writing online, and in a manner that: (1) maximizes students’ attainment of relevant learning outcomes; and (2) creates a supportive learning environment.
1. Be clear about the requirements and expectations going forward
The spread of the coronavirus – and the transition to online legal education – will cause many students to experience increased stress, uncertainty, and anxiety, the severity of which will vary based on each student's circumstances. Indeed, these effects will impact some students more directly and substantially than others.
To facilitate the transition to online education, professors should communicate clearly to students the requirements and expectations regarding assignments and grading, particularly if assignments or grading policies have been modified. For example, many law schools have decided to transition to pass/fail (or credit/no credit) grading for all courses. As such, professors should explain to students the criteria that distinguish passing from failing grades (e.g., a passing grade is the equivalent of a ‘C’ or better).
2. Provide students with writing checklists to make them aware of your grading criteria and to help students edit their work
Professors should consider creating a one or two-page checklist that sets forth the criteria (essentially, the rubric) that they will use when assessing the students’ work. Doing so will enable students to focus their writing and editing on the most relevant aspects of an assignment (e.g., effective topic sentences, proper IRAC structure), and help them to produce their best work.
3. Draft a one or two-page summary each week highlighting the major points of that week's classes
As stated above, the transition to online learning will likely cause many students to experience increased stress and anxiety due to, for example, increased family obligations and financial difficulties. Indeed, students may have less time to devote to their studies or simply struggle to focus on their work, particularly if they are living with family members or home-schooling children. For these and other reasons, students may struggle to complete reading assignments or otherwise dedicate sufficient time to mastering the material.
Drafting a one or two-page summary of the major points covered each week (with examples) will simplify the material and help students focus their attention on the most relevant legal writing skills.
4. Shorten the remaining assignments
In courses where students are required to write, for example, a pre-trial motion, appellate or trial brief, professors should consider shortening their assignments if the circumstances warrant. For example, professors may consider requiring students to write only the legal argument section of a pretrial motion or appellate brief. And professors can consider incorporating smaller, problem-based assessments to focus on areas that may not be required in a summative assessment.
5. Consider reducing or even eliminating the research aspect of an assignment
Some students will have reduced access to internet service and to electronic platforms such as Westlaw, Lexis, and Casetext. As such, professors should consider closed universe assignments that provide students with relevant legal authority.
6. Be as accessible as possible and provide as much feedback as possible
The transition to online learning will significantly impact students’ ability to meet with their professors for individualized feedback and support.
Two approaches may lessen the resulting impact on students. First, professors can hold a few optional classes for the entire class, in which the professor provides generalized feedback on the students’ work and offers suggestions for improvement. Second, professors can, at the outset of online learning, hold 10-minute conferences in which the professor provides support and feedback to each student (based on, for example, prior assignments). And in providing feedback, be mindful that students lack access to some, if not all, of the support services (e.g., a writing center, face-to-face interaction, academic success) that were previously available. This should cause law schools who remain on a grading system to consider adjusting their grading curve upward or permitting students who are particularly disadvantaged the option to take one or more courses on a pass/fail basis.
7. Consider holding online legal writing classes only once per week
This suggestion may not apply to some law schools, but at law schools where legal writing courses are held two or more times per week, professors should consider switching to a once-a-week format. Doing so will enable law professors to devote sufficient time to discussing the relevant material and reduce the burden on students who may struggle to coordinate their schedule in light of personal circumstances.
8. Take ten minutes at the end of each class to show that you care
Certainly, this is a difficult time for law students and law professors. One way to help students is to devote ten or fifteen minutes at the end of each class to simply asking the students how they are doing and encouraging them to share their respective experiences. Doing so will help to create a constructive ad supportive learning environment.
9. Be optimistic and inspire students
Many students will probably rely to some degree on professors and others to provide support during this difficult time. This places professors in a position to offer encouragement, optimism, and inspiration to their students, and to show students that they can succeed despite adverse circumstances.
10. Balance compassion with rigor
Certainly, this is an extraordinary time that requires compassion and understanding for students. At the same time, compassion should be balanced with rigor. Professors should continue to challenge students to put forth their best effort and reward those who produce the highest quality work. Indeed, just as this is a time for compassion, it is also an opportunity to teach students that, no matter what circumstances they may face in life, they must possess the mindset and coping skills to succeed despite adversity.
11. Take care of yourself
Law students and law professors should be particularly mindful of their physical and mental health during this period. Exercise. Eat healthy foods (and junk food in moderation). Practice mindfulness techniques. Communicate with friends and family. Do things that make you happy (listening to Elvis Presley’s music is likely to create substantial happiness) and remember that this, too, shall pass.
Monday, March 23, 2020
In the wake of the COVID-19 outbreak, Arizona Law decided to move our 2L/3L intramural moot court competition online. Because our university's announcement about moving to online classes came during spring break, we determined that students who had traveled home for spring break would probably want to stay there to complete classes. Therefore, we needed an option to allow students to conduct arguments remotely.
While our competition is rather small, it is important! The winners go on to represent our school at the ABA's national appellate advocacy competition.
While our competition rounds start later this week, for the past several days our moot court board has been hosting practice rounds via Zoom. I thought it might be helpful to other schools if I shared some tips for creating the competition and for running the rounds.
Competition structure: Each round consists of three judges, a bailiff, and two advocates. The bailiff is responsible for creating the Zoom meeting link, disseminating it to participants, and keeping time for the round. I have asked the bailiffs to list me as a co-host for the round in case of an emergency. As soon as all participants are in the meeting, the bailiff will create break-out rooms for the advocates and the judges. You can find more information about Zoom breakout rooms here. The breakout rooms allow the judges to ask the bailiff any questions before the round begins. They also allow the judges to deliberate after the round.
Although the judges preside over two consecutive rounds, we are creating a Zoom link for each separate round. This prevents the second group of advocates from disrupting the end of the first argument.
Tips for judges: On Friday, I asked our moot court board what challenges they had seen in running the practice rooms. They had some GREAT tips for judges to help make rounds run smoothly.
- Technology Tips
- Be sure to keep your microphone muted when you are not talking.
- Don't forget to unmute when you want to talk.
- I think that the above two points are the cardinal rules for any and all Zoom meetings.
- Consider wearing a headset or earbuds to cut out background noise and to allow yourself to hear and be heard better.
- Try to minimize Internet usage in your house during the argument. Your connection will be better if your kids aren't streaming Disney+ while you are trying to judge (or argue!) a round.
- When I am teaching an online class I try to close everything on my computer but Zoom and my notes. I don't want loud email notifications during my class.
- Use gallery view on Zoom to better see everyone.
- Setting Tips
- Be mindful of the lighting. Back lighting will make you hard to see. Front lighting will help you appear clearer.
- Be sure that there is nothing distracting behind you (or in the room with you!). My cats get locked out of my office during most meetings.
- Argument Mechanics
- Don't mark off for a poor sound connection. Students have various levels of Internet service.
- Also, don't mark off for lack of professional attire. Many of our students went home for spring break not knowing that they would be staying home indefinitely while the whole world shut down. Now, as stores shut down, they might not have the ability to get professional clothes in a timely manner.
- Don't be afraid to interrupt! And don't be offended if students slightly talk over you. Given the lag with online communications, some amount of interruption is inevitable.
- Try to lean forward, raise your finger, or something to signify to the advocates that you are trying to ask a question.
- But please ask questions! This makes the students' experience so much better!
- Don't be offended if students ask for clarification.
Tips for Participants
- Read the judge tips--many of those apply to you!
- Use gallery view to see all judges and the bailiffs. Watch carefully for social cues that indicate the judge has a question, like leaning forward. If you see such a cue, pause.
- Dress as professionally as you can in the situation. If you don't have a suit (or at least a jacket) try to wear something neutral. Now isn't the time to pull out your "taco cat shirt." (sorry, I love my taco cat shirt).
- Be mindful of your background. You don't want the judges asking you about the poster for your favorite political candidate that is hanging the background.
- Have fun and be patient! COVID-19 is fundamentally changing how courts operate. Some of this is good. It is time for courts to get up to speed on technology and offer more video/telephonic hearings. But, these types of proceedings require adjustment by everyone involved. Your video moot court experience will be a valuable one.
Good luck to all participants, and we here at the Appellate Advocacy Blog hope that you stay safe and healthy!
Saturday, March 21, 2020
I hope everyone is staying safe as we navigate our new COVID-19 reality. In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online.
At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom. We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online. As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support. In an effort to pay that support forward, I am sharing our process here. I hope our lessons can help other schools and moot court competitions make this transition. Our experience was very positive. The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us.
In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments. See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom). Currently, courts all over the country are holding their oral arguments online. See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).
We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom. We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling. Happily, about half of our first-year students still chose to participate.
We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds. With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms."
To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links. These judges also kept time, though we had the students run timers on their phones too. We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.
Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link. We asked hosts to name their meetings "Courtroom One 4:15," and so on. We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times. We shared the sheet with the courtroom assignments and links to all of our first-year competitors.
We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges. Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.
We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed. We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help. The next morning, our three courtrooms ran without a hitch. Having trusted judges as hosts really helped, and we recommend this approach.
We made our score sheet into a Google Form for the judges. It was fun to watch the scores roll in after the rounds. Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data. These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.
We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night. We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench. We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential.
In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online. Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too.
Monday, March 16, 2020
Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.
Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)
In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.
Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)
In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.
Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)
Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.
Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)
Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.
Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)
Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.
Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)
In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.
Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)
Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.
William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)
The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.
Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)
Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips.
Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)
In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.
Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.
Sunday, March 1, 2020
The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints
Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”
Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean. Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.
Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.
Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.” As Justice Ginsburg explained:
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.
Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.” Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”
In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.” As one commentator described:
They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).
Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”
Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”
 Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap
 See id.
 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).
 Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 Id. (emphasis added).
 Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1
 Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html
 David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).
 Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.
 Williams and Fieldstadt, supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).
 Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).
Friday, February 28, 2020
Every appellate practitioner knows oral argument rarely changes a case outcome. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument. This time can be hard to justify to clients, but an advocate must be prepared for oral argument. See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).
In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing. For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief. Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.
In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar. My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place. This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page. Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument. The binder should be tabbed and organized for very quick reference. The process of making the binder is also very useful for both final brief editing and oral argument preparation.
On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court. Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early. See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020). Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table. One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points. Advocates also have an organized binder if they do need to check something quickly.
In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side. The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief.
I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents. Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading. I ask my first-year students to make this page before turning in their briefs. I suggest they then use the paper as an editing checklist for the brief. The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing. Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.
In the law school setting, making the oral argument sheet before filing the brief is also efficient. First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument.
In practice, however, we often wait months after filing a brief for oral argument. Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice. By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument. Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time. Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.
For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder. Doing so can show where you have missed something in briefing and can save time later.