Appellate Advocacy Blog

Drafting a Strong Preliminary Statement

            The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.

1.    Begin with a strong opening sentence that captures the reader’s attention.

            The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor.  Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:

“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”

Versus

“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.

            Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.

 2.    Tell the court what you want.

            In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.

 3.    Tell the court why you should get what you want.

            Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor.  Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious.  Consider the following examples:

 “The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”

 Versus

“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”

             The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.

            Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position. 

4.    Be concise.

            Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:

“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”

Versus

“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.

            Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.

5.    In most instances, do not cite cases in the preliminary statement.

            Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.

       

Succeeding in the 1L Year

Recently, several of my undergraduate students who are attending law school next semester expressed anxiety and uncertainty about the first year. Certainly, these feelings are normal and shared by many incoming first-year law students. But this need not be the case. Below is the advice that I gave to my students as they prepare to enter law school.

1.    Don’t focus on succeeding in class; focus on succeeding on the exam.

In law schools, many professors use the Socratic Method, in which they question law students regarding, for example, the facts, holdings, and reasoning of particular cases.  Many incoming law students fear the Socratic Method, worrying that they will embarrass themselves in front of the class. As such, these students often spend hours preparing for class and briefing cases.

That is the wrong approach.

At the overwhelmingly majority of law schools, your performance in class means absolutely nothing. Quite frankly, none of your fellow students care about how you perform in class. They are just relieved that they weren’t the one that the professor called on. Furthermore, don’t be impressed by the “gunners,” namely, those who talk excessively in class or ask what may appear to be incisive questions. They usually do not get the best grades – or even good grades.  And your grades and class ranking, not your performance in class, are, by far, the most important factor in determining your job prospects upon graduation.

This doesn’t mean, of course, that you shouldn’t be prepared for class. But you should be aiming for a merely average, not an exceptional performance because your time should be dedicated to far more important matters.

Specifically, from day one, you should be focused on preparing for the final examination, which in most law school’s doctrinal courses determines your final grade.

How do you do that?

First, learn how to take a law school exam. To do so, purchase the Legal Essay and Essay Writing primer, which is available at www.leews.com. This program will teach you how to draft an effectively organized and persuasively presented answer. It will teach you CRAC or, as some professors prefer, IRAC, which will ensure that your answer is structured properly. 

Second, take practice exams – under timed conditions. Doing so will simulate what you will face when taking the final exam and, ultimately, maximize your chance of obtaining a high grade. Additionally, review model answers to those exams, including those written and graded by your professor, to learn what constitutes an outstanding answer.

Third, don’t brief cases. Instead, purchase commercial outlines and other instructional materials, such as Emmanuel’s Law School Outlines and Joseph Glannon’s Civil Procedure coursebook. Why? Because you need to identify the relevant rules of law that govern the resolution of particular legal disputes, and because you need to know how to apply those rules to the novel fact pattern that a final examination will present. In other words, the facts of the cases you read during the semester are ultimately irrelevant. Thus, briefing those cases is an unnecessary waste of time.

Fourth, draft an outline that concisely summarizes the legal rules for each topic that you have studied. Do not draft a 120-page outline that summarizes the facts and holdings of every case. Rather, draft a twenty-page outline that contains only the relevant legal rules because those rules are what you will need to know for the final exam.

To summarize:

• Don’t worry about how you perform in class.
• Purchase the Legal Essay and Essay Writing primer.
• Take practice exams.
• Don’t brief cases.
• Purchase commercial outlines.
• Draft your own outlines.

Now, many law professors will tell you the opposite in law school. They may tell you, for example, not to purchase commercial outlines. Don’t fall for it. If you follow the approach outlined above, you will improve your critical thinking skills and maximize your chances of success in the first year.

2.    Membership on Law Review (or at least a law journal) matters to employers.

At many law schools, law review membership is typically reserved for students who graduate in the top 10% of their class after the first year or who gain membership through other means, such as a writing competition.

To be sure, employers value law review membership because it signals to them that the applicant is a high-quality student. Thus, strive for membership on your law review or, at least, on a specialized journal at your law school.

3.    Improve your writing and critical thinking skills.

Excellent writers and critical thinkers make excellent lawyers. From day one, focus on developing your persuasive writing skills and focus on gaining experience in drafting the most common litigation and transactional documents. Law firms and clients value immeasurably graduates who can write persuasively and whose analytical skills are second to none.

4.    Develop relationships with your peers and professors.

Employers are not simply looking for quality law school graduates. They want to hire good people. No one likes a jerk, an unbearable narcissist, or someone who just can’t seem to shut up.

Put simply, your reputation is critical to your success.

As such, conduct yourself with class. Be honest. Be nice. Have integrity. Support your classmates. Listen more than you talk. Don’t gossip. Don’t base your self-esteem on what grade you received in Torts. And realize that there is so much more to life than the law.

Additionally, get to know your professors. Schedule an appointment with them during their office hours to introduce yourself, to receive feedback on an assignment, or to ask questions about the practice of law. Most importantly, if you need help, ask for it.   

5.    Develop a strong mindset.

In law school, there will be times when you will fail. There will be times when you fail to live up to your expectations. And there may be times when, as in life, you experience unfairness.

But that does not determine your destiny. Failure is a good thing because it enables you to learn lessons that will enhance your growth as a lawyer and as a person. Not meeting your expectations can teach you what you need to do differently in the future to achieve the result you desire. And unfairness can teach you the value of justice.

Indeed, your choices, not your circumstances, determine your destiny; how you respond to adversity is critical to whether you achieve failure or success. Put simply, how you think impacts what you believe and, ultimately, what you do.

So be sure to focus on both your professional and personal development in law school. Doing so will enable you to be successful -- and happy.

The Trump Indictment

Donald Trump has been indicted. Although this is not a surprising development, it is not a good day for the rule of law or for public confidence in our institutions.  

To begin with, a grand jury indictment is not nearly as significant as some in the media would have you believe. As the saying goes, grand juries would indict a “ham sandwich” because the threshold for securing an indictment is not high, and the defense’s ability to test the prosecution’s case is limited.[1] Furthermore, the investigation occurred in New York City, where liberals substantially outnumber conservatives, and where Trump is, to put it mildly, not admired. When you combine these factors with a district attorney – Alvin Bragg – who seems hellbent on indicting Trump (as evidenced by his public statements and legal theory) you have the perfect storm for an indictment that appears more political than principled.[2]

Indeed, Bragg appears to care more about convicting Trump than addressing the approximately 22% increase in various crimes in New York City. As Harvard Law Professor Dershowitz, who did not vote for Trump, explains:

When a district attorney who ran as a Democrat and promised to “get” Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.[3]

Put simply, the case against Trump is not strong. In fact, if media reports are correct about the charge Trump is facing, it is incredibly weak. As George Washington law professor Jonathan Turley states, Bragg “is attempting to bootstrap [a] federal crime into a state case,” and “if that is the basis for the indictment … it’s illegally pathetic.”[4]  Likewise, former Whitewater deputy counsel Sol Wisenberg characterized the legal case against Trump as “preposterous.”[5] Even some liberal commentators agree that the case against Trump is not strong.[6] For example, Elie Mystal asserts that “the odds that the path to real justice, let alone prison time, runs through the Manhattan DA’s office still seem very, very long.”[7]

Specifically (and again, if media reports are correct), the charge against Trump is falsifying business records, which requires, among other things, an intent to defraud. The legal theory, apparently, is that Trump falsified business records (characterizing them as legal expenses) when reimbursing Michael Cohen for paying Stormy Daniels $130,000 to conceal Daniels’ affair with Trump (to be clear, paying “hush money” to another is not, in itself, a crime). In New York, this is a misdemeanor, and it only becomes a felony “if it was in service of another crime,” which Bragg allegedly “posits is a [federal] campaign finance violation.”[8]  

Importantly, the Southern District of New York, which investigated this matter, declined to prosecute the case.[9]  Also, former Manhattan District Attorney Cy Vance, did not pursue an indictment.[10] And for good reason. Why would a prosecutor try to convict a former president for a misdemeanor, particularly where the Southern District of New York declined to prosecute, the case is so weak, and where doing so would appear politically motivated?

None of these factors seem to matter to Bragg, a Democrat who in his campaign for Manhattan District Attorney promised to focus on investigating Trump, stating that it “merits the attention of the DA personally.”[11] Apparently, Bragg is attempting to connect Trump’s alleged misdemeanor-level misconduct to a federal campaign finance violation, which is a felony, by alleging that the payments to Cohen constituted an illegal contribution to the Trump campaign.

Such a creative and novel legal approach suggests that Bragg is searching for some way, however untenable, to bring a felony charge against Trump. But it is unlikely to succeed. As Mark Pomerantz, a former district attorney, stated, Bragg will “have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.”[12] In other words, the “intent to defraud” must include “an intent to commit another crime or to aid or conceal the commission thereof.”[13] That alone will be difficult to prove, as Trump may argue that the payments were intended to prevent his wife Melania from discovering the affair, not to cover up another crime (an illegal campaign contribution). 

Furthermore, if reports from the media are accurate, the primary witness for the prosecution will be Michael Cohen, a disbarred lawyer who pled guilty to, among other things, tax fraud, who served time in prison, and who has lied countless times, including before Congress.[14] If you doubt this, listen to the statements by Robert Costello, who testified recently before the grand jury.[15]  Also, one must wonder how Trump can be prosecuted for a federal campaign violation in New York state court, why such a prosecution should be pursued when the Southern District of New York declined to do so, and where the optics of such a prosecution suggest a political motive.

Such creative lawyering (tying a state law misdemeanor to a federal felony), rather than being a legitimate purpose of the criminal justice system, suggests that the Bragg wants to weaponize the legal system to “get” Trump.  As Dershowitz explains:

This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.[16]

Simply put, this is a weak case that appears as politically motivated as it gets. Indeed, it is quite concerning that, as Bragg has reduced 52% of felony charges in New York to misdemeanors, he now seeks to raise Trump’s alleged crime from a misdemeanor to a felony.[17] Perhaps Bragg’s personal attention should be devoted elsewhere, particularly given the 22% rise in certain crimes in New York City.[18]

Ultimately, no matter what you think of Trump, everyone should, hopefully, believe that the law should be applied in an equal and even-handed fashion. Think about it: if the defendant were anyone other than Donald Trump, would Bragg be pursuing this?

Of course not. 

Well, maybe if it were Richard Nixon.

In essence, Bragg is going after the person (Trump), not the crime. That, in a nutshell, is the point – and the problem.

After all, let’s be honest about what is happening here.

Bragg probably despises Trump. Furthermore, when (and before) Donald Trump was elected in 2016 as an anti-establishment candidate, the mainstream media hated him.[19] Indeed, the mainstream media, which has as much, if not less, credibility than Michael Cohen, did nearly everything in its power to discredit and, quite frankly, destroy Trump, as evidenced by, among other things, the now-debunked allegations of Russian collusion.[20] 

Additionally, the establishment, including individuals such as James Comey and Peter Strzok, hated him. Furthermore, universities, which are overwhelmingly liberal and who employ professors who believe that diversity of thought is more deleterious than the coronavirus, have almost uniformly condemned Trump and unapologetically rejected a free marketplace of ideas. If you doubt this, look at what happened to Fifth Circuit Judge Stuart Kyle Duncan at Stanford Law School, where students and Tirian Steinbach, the Associate Dean of Diversity, Equity, and Inclusion, shouted down Duncan for views that they did not share.[21]  Or observe the circus-like shenanigans of students at Yale Law School, where they ridiculed Kristen Waggoner, an attorney and Supreme Court litigator.[22] The commitment to diversity, equity, and inclusion (and free speech) obviously exists only in the abstract at these schools. 

The consequences that Trump’s prosecution will have to our institutions – and the rule of law – will be substantial. The legitimacy of our institutions depends in substantial part on the perception that our elected officials apply the law equally, fairly, and even-handedly, without regard to political affiliation or personal animus. If the rule of law is perceived as a political weapon (see, e.g., North Korea, Russia), the law itself will be reduced to nothing more than a tool for politicians to use against those who threaten their power. And there is no bigger threat to liberty and equality than a rule of law that is administered based on politics rather than principle, and opportunism rather than objectivity. The rule of law – and the American people – demand much more and should accept no less. 

Put differently, people need to believe that you will never be prosecuted or targeted based on what you believe, what your political affiliation is, or who you are. It should be based on what you did, and whether those actions would result in a prosecution for most, if not all, individuals, regardless of status, who engaged in similar conduct. That is simply not the case here. If the defendant were Joe Biden rather than Donald Trump, there would be no prosecution.

It's no wonder why the American people have lost faith in our institutions, academics, and elected leaders. Years ago, individuals such as Walter Cronkite, Robert C. Maynard, and Peter Jennings exemplified the standards to which journalism – and our institutions – should aspire. Now, the American people are treated to the folks at CNN, Fox News, and MSNBC, few of whom can even remotely compare to the journalistic integrity that the former individuals embodied. Even a few seconds of listening to Bryan Stelter or Joy Reid, or Glenn Beck underscores this point.

Indeed, Bragg’s conduct – and the conduct of many political leaders, prosecutors, and pundits – leads to one ineluctable conclusion.

They are political actors.

Their goal is to advance a political agenda.

And they don’t even hide it anymore.

As Professor Dershowitz stated, “[w]hat matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.”[23]

Unfortunately, this nonsense is not without precedent.

In 1998, the Republicans spent millions of taxpayer dollars to impeach Bill Clinton (in the House of Representatives) over a consensual affair (and alleged perjury and obstruction of justice) that, while not, to put it nicely, the best exercise of judgment, could not reasonably have been construed as a high crime and misdemeanor. And Ken Starr did everything in his power to degrade and humiliate Clinton with a report laden with salacious details that no sensible person would have included. Well, here we are again: a criminal indictment against a former president and leading candidate for the Republican Party’s nomination based on an affair with a porn star. Not to mention, the United States Supreme Court manufactured out of thin air a right to abortion in Roe v. Wade, and approximately fifty years later, overturned Roe for no other reason than that the political persuasions of the Court had changed.

What’s more, it is nearly impossible to have a civil conversation with those with whom you disagree or to debate issues with others in an atmosphere of civility and respect.  Alvin Bragg’s decision makes this situation worse, not better and makes the country more divided, not united. Put simply, Trump’s indictment is an unsurprising, quite unoriginal, and obviously predictable continuation of this unfortunate chapter in American history.  

Ultimately, almost anyone can respect the rule of law, promote diversity of thought, and remain committed to fairness when they are surrounded by people who agree with them. But true leaders – and people with character and integrity – have the courage to be fair to every citizen, particularly the ones that they despise, just like the First Amendment depends on tolerating speech that you find offensive.

That is what the rule of law – and a society dedicated to liberty, fairness, and equality – demands, and what every citizen deserves.

That includes Donald Trump.

 

[1] Toni Messina, Criminally Yours: Indicting a Ham Sandwich (Feb. 8, 2016), available at: Criminally Yours: Indicting A Ham Sandwich - Above the Law

[2] Of course, this is based on the media reports regarding the legal charges that Trump will face. The indictment may contain facts and charges that make the case stronger.

[3] Alan Dershowitz, Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution (March 31, 2023), available at: Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[4]  Steven Nelson, Democrats Giddy at Trump Indictment, But Legal Experts Warn Case is Weak (March 30, 2023), available at: Democrats giddy at Trump indictment, but legal experts warn case is weak (nypost.com)

[5] Id.

[6] See Elie Mystal, Donald Trump Has Been Indicted/ Don’t Get Your Hopes Up (March 30, 2023), available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[7] Id.

[8] National Review, The Reckless Trump Indictment (March 31, 2023), available at: Reckless Donald Trump Indictment | National Review (emphasis added) (brackets added).

[9] See Mystal, supra note 6, available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[10] Jeremy Herb, Kara Scannell, and John Miller, Inside the Long and Winding Road to Trump’s Indictment (April 1, 2023), available at: Donald Trump: Inside the long and winding path to a historic indictment | CNN Politics

[11] See Kara Scannell, New Manhattan DA Alvin Bragg Pledges to Focus on Trump Investigations (Dec. 20, 2001), available at: Alvin Bragg: New Manhattan DA pledges to focus on Trump investigations | CNN Politics (emphasis added).

[12] Jose Pagliery, Manhattan DA Insiders Worry the Trump Hush Money Case is Weak Sauce (March 29, 2023), available at: Manhattan District Attorney Insiders Worry the Trump-Stormy Daniels Alvin Bragg Hush Money Case Is Weak Sauce (thedailybeast.com)

[13] Mark Joseph Stern, The Big Problem with the Trump Indictment (March 30, 2023), available at: Alvin Bragg’s indictment of Donald Trump is full of challenge and promise. (slate.com).

[14] See Laura Nahmias and Daniel Samuelsohn, Michael Cohen Sentenced to 3 Years in Prison (Dec. 12, 2018), available at: Michael Cohen sentenced to 3 years in prison - POLITICO

[15] See Bart Jansen and Kevin Johnson, Lawyer Assails Trump Grand Jury Witness as ‘Liar on Revenge Tour,’ (March 20, 2023), available at: Robert Costello undercuts Michael Cohen in Trump grand jury probe (usatoday.com)

[16] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[17] See Melissa Klein, NYC Convictions Plummet, Downgraded Charges Surge Under DA Bragg (Nov. 26, 2022), available at: Convictions plummet, downgraded charges surge under Manhattan DA Bragg (nypost.com) (emphasis added).

[18] See Chelsia Rose Marcius and Eh Shanahan, Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell (January 5, 2023), available at: Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell - The New York Times (nytimes.com)

[19] See Tony Perkins, The Numbers that Prove How Much the Mainstream Media Hate Trump (Dec. 14, 2017), available at: The Numbers That Prove How Much the Mainstream Media Hate Trump (frc.org)

[20] See Philip Ewing, Mueller Report Finds No Evidence of Russian Collusion (March 24, 2019), available at: Mueller Report Finds No Evidence Of Russian Collusion : NPR

[21] See Stuart Kyle Duncan, My Struggle Session at Stanford Law School (March 17, 2023), available at: My Struggle Session at Stanford Law School - WSJ

[22] See Bradley Evans, ADF General Counsel Harassed at Yale Law School Event (March 21, 2022), available at: ADF General Counsel Kristen Waggoner Harassed at Yale Law School Event | Alliance Defending Freedom (adflegal.org)

[23] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

Revisiting George Orwell and Good Writing

This semester, I am lucky enough to be teaching a seminar I designed on bias in legal analysis and writing.  The class has been a delight, and I am impressed every week by my thoughtful and dedicated students. 

In one of our sessions, I proposed using George Orwell’s writing rules, along with his broader concerns with “Doublespeak” and “Big Brother,” to add clarity and remove bias from writing.  Several of my students have included these ideas in the class papers they are drafting, and I hope these tips help you draft as well.

In his pre-1984 essay, Politics and the English Language, Orwell proposed six rules on using English, and he repeated these in later works as well.  Many commentators have discussed using the rules for clarity, but I believe we can also combat bias with these ideas.

Here are Orwell’s rules, as summarized by Judith Fischer in her article Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129, 135 (2007): 

(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

See also Austin Wayne Schiess, Writing a Brief the George Orwell Way, 14 App. Advoc. 6, 6-6 (2001). 

How can we use these rules in appellate writing?  

1. Avoid Cliches. Fischer notes: “Think out of the box” and “avoid cliches like the plague.” 68 Mont. L. Rev. at 137.  But seriously, some cliches are racist and many are unclear.  Remove them from your writing as much as possible.

2. Prefer Shorter Words. I am old enough to remember when courts imposed motion and brief page limits, long before word limits. I recommend reading your own work as if you have page limits and word limits.  This can help you remove legalese, redundant wording, and unneeded long terms.  In his blog, Demian Farnworth suggests practicing by using only monosyllabic words.  The monosyllabic approach can add many words and decrease clearness, but it is a fun way to practice writing with shorter terms.  See https://copyblogger.com/short-sentences/ (Oct. 19, 2015).

3. Be Concise & 5. Avoid Jargon. (I’ve already blogged about Rule 4, Use Active Voice, often.) Use concision as an enemy of bias and obfuscation.  As Justice Ginsburg reminded us, our readers “simply don’t have time to ferret out one bright idea buried in too long a sentence.”  Remarks on Appellate Advocacy, 50 S.C. L. Rev. at 567 (1999).  One way to practice being concise and removing jargon is by reviewing any manual for a small appliance in your home.  Review these manuals for lengthy clauses and odd technical jargon.  My family’s favorite is our toaster manual, which often uses five words where one will do, and adds confusing technical details like “LED light indicator surround ring” for what is in fact the “toasting” light.  Finding these lengthy and confusing terms around the house will help you edit for concision in your briefing.

6. Use Common Sense--Break Any of these Rules If they Reduce Clarity.  Recently, I learned there is reasonable debate about exactly what Winston Churchill said regarding ending a sentence in a preposition. Nonetheless, we know he said something close to:  “This is the sort of English up with which I will not put.”  See https://brians.wsu.edu/2016/11/14/churchill-on-prepositions/.  We can follow our own common sense, like Churchill and Orwell.  As another example, sometimes one longer clause reads better than a series of short, choppy sentences.  Let’s follow rules on clarity above all else.

Are these rules enough?  Orwell did not think so, as evidenced by his concern over “Doublespeak” and obfuscation.  To follow Orwell, therefore, we should make sure our words say what we mean.  While this sounds simple, any experienced appellate writer knows editing takes time and effort.  I hope Orwell’s rules help in this editing task.

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

Implicit Bias Challenged, If Not Debunked

In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question.[1] Below is a summary of the flaws in implicit bias theory.

1.    The Implicit Association Test (IAT) is deeply flawed.

The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:

The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[2]

Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times.[3] One commentator explains as follows:

The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.[4]

Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.”[5] To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.”[6] Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[7]

2.    There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.

Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[8]

Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”[9]

3.    There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit          biases.

Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?

These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[10]

Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.

 4.    Implicit bias training is ineffective.

Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:

[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.[11] 

Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."[12]

Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars.[13] Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.[14]

Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.[15]

Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.

 

[1] Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today

[2] See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.

[3] See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[4]  Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)

[5] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).

[6] Id.

[7] Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Id.

[9] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

[10] Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea, PSYCH. TODAY (Dec. 2, 2017), https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

[11] Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[12] See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American

[13] See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at:   U.S. law students to receive anti-bias training after ABA passes new rule | Reuters

[14] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:

It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.

[15] See Green and Hagiwara, supra note 12.

What Law Students Should Know About Law Practice

One of the criticisms of law schools is that they do not adequately prepare students for law practice.

In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills.[1] This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.

Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.

1.    Learning to work with other people – including those you don’t like – is critical to your success.

In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession.  They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.

And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.

2.    Confidence and humility are critical to developing strong relationships with your colleagues.

Confidence matters in the legal profession.

But humility matters too.

Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.

In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.

3.    Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.

Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.

Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person.  As stated above, nobody likes jerks.

4.    Excellent persuasive writing skills are essential.

If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills.  Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.

5.    Outstanding communication skills are critically important.

Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.

Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.

6.    Law practice is stressful and can be all-consuming.

The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.

But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity.  Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.

 

 

[1] See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)

How to Prepare Law Students for the Real World

The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.

1.    Use the Socratic Method.

Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.

The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.

Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.

Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.

2.    Expand the legal writing curriculum.

Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.

But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.

In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.

More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.

3.    Require students to enroll in at least two clinics.

Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.

Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.

For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).

4.    Require students to take multiple upper-level practical skills courses.

Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.

The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.

After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.

5.    Use “high-pressure” assignments.

The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”

For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.

6.    Focus on developing the intangibles, or soft skills.

A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.

For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.

Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.

7.    Focus on mindset development – and mental toughness.

In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.

But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.

Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.

8.    Have high standards.

It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.

9.    Teach students to respect diverse viewpoints.

Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.

For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.

After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.

***

Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.

Disagreement, Civility, and Respect

It’s certainly no secret that we live in very partisan and polarizing times.  But the reasons for such polarization border on the ridiculous.

Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration, or education. Additionally, the media, whether it be CNN, Fox News, or MSNBC, has devolved into little more than a partisan enterprise that vilifies anyone with whom it disagrees, and that eschews true intellectual debate (and common sense).  What’s more, the rhetoric of our politicians, both Republican and Democrat, has become so divisive, simplistic, and, quite frankly, dishonest, that any attempt to engage in reasonable discourse is futile. And the United States Supreme Court has contributed to the problem; the meaning of the Constitution seems to depend more on the composition of the Court rather than a reasonable interpretation of its text. In essence, the credibility of many public figures who once inspired trust has vanished as they have unapologetically exposed their personal and political biases.

These factors, among others, have compromised citizens’ confidence in our institutions, in the political and electoral process, and in the ability to disagree on issues of law and policy while maintaining civility and respect. And such factors, not Donald Trump or Joe Biden, is the true threat to a viable and sustainable democracy.

Why is this happening? Below are a few reasons – and suggestions to restore a minimal level of maturity and common sense to public discourse.

1.    The prevalence of groupthink

Groupthink is one of the biggest impediments to a meaningful exchange of truly diverse perspectives. In academia, for example, particularly at law schools, the faculty are overwhelmingly liberal. This is not to say that the views of these professors – or liberals generally – lack merit. It is to say, however, that when you surround yourself with and continually hire people who mostly think like you, opposing perspectives seem so foreign and ‘wrong’ that it precludes meaningful discourse and discourages people from offering diverse viewpoints. Anyone who is a law professor that admires Justice Antonin Scalia – and originalism – will certainly relate. And anyone who has been on the receiving end of students trying to shout you down because you are offering a perspective with which they disagree will likewise relate

2.    A lack of humility – and the failure to admit that you might be wrong

Not everything is about you.

If you’re so self-absorbed that you cannot see past yourself and empathize with others, you cannot form true human connections, make an impact on others’ lives, or make meaningful improvements in your own life. Sadly, inflated egos and narcissistic personalities are prevalent in society, and such people – and personalities – are incredibly toxic. These people almost always think that they are ‘right’ on every issue. They ignore inconvenient facts. They cherry-pick data and evidence to suit their narratives. They hurl insults at those with whom they disagree.  Put simply, they cannot fathom the possibility that maybe, just maybe, their views are inaccurate, incomplete, or incorrect. When a person thinks like that, reasonable discourse is impossible. And the truth is that no one is necessarily right about everything – or anything. It takes humility to listen more and talk less, and to realize that we all have much to learn about life and the law.

3.    Immaturity and weak mindsets

It’s amazing how many adults behave like children.

People have different experiences. They come from different backgrounds. They were raised in different environments. They have often suffered unique traumas and disadvantages. These and other experiences shape a person’s values and worldview which, while invariably different from others, are no less worthy of respect. In other words, not everyone thinks like you. And if you had grown up in their shoes, you probably wouldn’t think the way you do now.

So, grow up. The fact that others have different opinions does not make them wrong. It does not make them bad people. It does not make them immoral or invidious. It just makes them different.  And difference is the essence of diversity.

For example, if someone is pro-life, it doesn’t automatically mean that they have no respect for a woman’s bodily autonomy or liberty. If someone is pro-choice, it doesn’t mean that they sanction the killing of human life. It just means that they have different perspectives, which are informed by their personal experiences, including family upbringing and the overcoming of adversity. If someone voted for Donald Trump, it does not mean that the person is racist or unintelligent. It just means that they are different from you and those differences resulted substantially from, among other things, the environment in which they evolved. As stated above, if you grew up in their shoes, your opinions and worldview might be far different from the ones you have now.

If you take offense to or discriminate against those who have different opinions, then it is you who is the enemy of diversity.

4.    Hypersensitivity

Life is difficult. It is unfair. It is unjust. People can be terribly critical and judgmental, and they are often the ones who espouse the very virtues (e.g., tolerance and acceptance) that they lack.  But not every criticism is undeserved, and not every experience of unfairness or injustice is unbearable.

Successful people have strong mindsets. They have a positive thought process. They are mentally tough. They know how to respond to adversity. They realize that your choices, not your circumstances, determine your destiny. They don’t make excuses. They focus on what they can control, and they do not get distracted by external ‘noise.’ In short, they have thick skin while simultaneously treating others with kindness and empathy.

5.    The inability to listen and the unwillingness to learn

So many people just cannot shut up.

These folks often cringe or come quite close to a nervous breakdown when they confront opinions, facts, or evidence that undermine their subjective policy predilections or expose their personal biases. The inability to listen, however, only ensures the impossibility of engaging in respectful and meaningful discourse. Having listening skills is critical to building successful professional and personal relationships, and to creating an environment of mutual respect.

So, start listening more. You might learn something.

6.    Vilifying people personally because you disagree with them politically

It’s shocking how people resort frequently to personal attacks to demean and degrade those with whom they disagree. And it’s alarming how many people embrace simplistic narratives and dichotomies such as ‘good’ or ‘bad’ or ‘right’ or ‘wrong.’ Reality is far more complex and often resides in a gray area where no one can claim a monopoly on truth. If you have even the semblance of self-awareness, a modicum of maturity, and an ounce of humility, you know that attacking someone personally based on differences in opinion reflects insensitivity and intellectual dishonesty.

For example, people who supported Justice Brett Kavanaugh’s nomination are not necessarily vile sexists. People who supported Donald Trump are not necessarily ignorant racists. People who support Alexandria Ocasio-Cortez are not necessarily socialists. Likewise, people who support affirmative action do not necessarily believe in ‘reverse discrimination,’ and people who oppose affirmative action are not necessarily racist or privileged. They are just people who think differently than you. They are no better – and no worse.

In the end, our similarities and shared values far outweigh our differences, and the failure to embrace those similarities and respect those differences is corrosive to any society that values liberty and equality.

So, the next time you’re in a faculty meeting, a board meeting, a debate at a bar, or a discussion in a classroom, be open to new perspectives. Choose to truly embrace diversity.

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

In Praise of the Second Edition of The Indigo Book: A Manual of Legal Citation

Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook.  On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales.  See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.

As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook.  Additional states have their own gloss on key Bluebook rules or allow use of other manuals.  Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court. 

Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition.  The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition.  See generally Wendy S. Loquasto, Legal Citation:  Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017). 

Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook:  https://indigobook.github.io/versions/indigobook-2.0.html.   Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource.  In sharing the second edition, Prof. Romig explained:  “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.”  The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes.  Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.” 

The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias.  Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.”  In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.  

Tips for Writing a Persuasive Reply Brief

Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.

1.    Begin with a concise and powerful introduction.

Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.

After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.

2.    Focus on what your adversary did not say.

Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.

3.    Respond to some of your adversary’s arguments.

The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments.  If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.

Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.

4.    Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.

The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.

Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.

5.    Write your reply brief with the expectation that it may be the first document that the judge reads in your case.

Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues.  This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.

6.    Maintain consistency with your initial brief.

Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.

7.    Keep it short and re-enforce your theme.

Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.

8.    End strong.

A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.

 

 

Characteristics of the Best Appellate Advocates

The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.

1.    They are highly intelligent and analytical.

The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.

2.    They have the intangibles.

The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.

3.    They are objective in assessing the merits of an appeal.

The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.

4.    They know how to select issues for an appeal.

The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.

5.    They are exceptional writers.

The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.

6.    They are outstanding oral advocates.

The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.

7.    They are extremely thorough and methodical.

The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.

8.    They are confident.

The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.

9.    They win.

As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.

Honest Advice for Incoming Law Students

Incoming law students undoubtedly receive a substantial amount of advice regarding how to succeed in law school and the legal profession. Below is some honest advice based on experience and the realities of law practice.

1.    Focus on developing your analytical thinking and writing skills.

Great lawyers are extremely intelligent. They have exceptional analytical thinking and persuasive writing skills. Thus, in law school, you should focus predominantly on developing these skills.

Regarding your analytical thinking skills, learn, for example, how to quickly extract the rule of law from a case, synthesize rules from different cases, distinguish unfavorable facts and legal authority, reason by analogy, address counterarguments effectively, present a logical argument, and explain why the policy implications of a ruling in your favor lead to the fairest and most just result.

Concerning your writing skills, focus on, among other things, writing concisely and in plain language, presenting a well-structured and logical argument, crafting a compelling narrative, and avoiding common mistakes, such as unnecessary repetition, overly long paragraphs, over-the-top language, and spelling and grammatical errors.

2.    Your grades and class rank are incredibly important.

Your grades and class rank largely determine your prospects of obtaining membership on your school’s law review, being selected for a clerkship, and receiving job offers from prestigious law firms. Accordingly, from day one, focus on achieving the highest grade possible on your law school exams. In so doing, manage your time effectively, purchase the LEEWS legal essay exam writing system (www.leews.com), buy commercial outlines, such as Emanuel Law School outlines, take practice exams, use the IRAC/CRAC method in answering your exam questions, draft concise outlines, and learn the rules of law for each subject (not the facts of the cases you studied).[1] Finally, read Getting to Maybe: How to Excel in Law School Exams.[2]

Also, do not worry about performing well in class when the professor calls on you or about impressing your classmates with incisive questions or comments. This has no (or a very minimal) impact on your grade. Additionally, do not brief cases. Instead, learn the black-letter law and practice applying the law to hypothetical fact patterns. And learn how to draft an answer that flows logically, considers all relevant perspectives, and arrives at a reasonable conclusion.

Having said this, law schools provide wonderful opportunities to network, get involved in student organizations, and participate in other extracurricular activities. You should take advantage of these opportunities. But at the end of the day, grades and class ranking are what matter.

3.    Your soft skills matter too.

To be a great lawyer, it is not enough to be extremely intelligent and a gifted writer. Although these skills are critical to your success, they are not sufficient to ensure a successful legal career.

Great lawyers have humility. They have strong interpersonal skills. They have emotional intelligence. They listen. They know how to work collaboratively and accept constructive criticism. They have common sense and exercise good judgment. They know how to manage their time and work efficiently. They know how to communicate effectively, think creatively, and adapt to new circumstances. And ideally, they are nice people; they are respectful and decent, not arrogant and narcissistic.

When you begin law school, you will undoubtedly confront students who are jerks and it will not take long to spot them. Typically, they think they are better than everyone else. They have the emotional maturity of a five-year-old. They gossip. They ask you what your LSAT score was and what grade you received on your exams. These losers should be avoided at all costs. And when they become lawyers (or, worse, married), their prospects for success will diminish (and the likelihood of divorce increase) because of their personality. Do not be like these people – or associate with them.

4.    Lose your idealism and be realistic about what law practice entails.

When you begin your law school career, you will almost certainly be overwhelmed with platitudes about the law and a legal career. For example, you may hear statements to the effect of “the law is a noble calling and the vehicle by which you can achieve a more just and equal society,” or “lawyers are the agents of social change whose mission is to change the world and make a transformative difference in people’s lives.”

This sounds wonderful. But it is not the reality of what you will be doing as a lawyer. So, if your reason for going to law school is to “make a difference” and to “change the world,” you are going to be disappointed.

Most competent graduates will obtain jobs in private law firms that do litigation and transactional work. They will represent, for example, banks, corporations, developers, universities, and hospitals. They will work long hours under stressful conditions. They will spend most of their time drafting pleadings, motions, briefs, and discovery, taking depositions, dealing with difficult clients, and negotiating settlement offers. Of course, there is nothing wrong with this; lawyers provide a vital service to these clients and ensure that their legal rights are protected.

But disabuse yourself of the notion that you are going to change the world. And be honest with yourself about the realities of the world. If you think that most criminal defendants are innocent, you are delusional. If you think that the vast majority of law enforcement officers are racist and that most prosecutors spend their time convicting innocent people, you are mistaken. Not to mention, the majority of cases result in a plea bargain (or in civil cases, a settlement).

This is not to say that the practice of law is not a noble undertaking; indeed, lawyers have been responsible for protecting civil rights and liberties and achieving greater social and constitutional protections for citizens. It is to say, however, that this is not the common or everyday experience of most lawyers.

5.    Be mindful of incurring too much debt.

As has been well-documented, many law students incur crushing, six-figure, non-dischargeable debt and, upon graduation, struggle to find a job to justify that debt. Do not be one of those people.

Now, this does not mean that incurring debt is always a bad thing. If, for example, you are accepted to Yale, Harvard, Stanford, or Chicago, and intent on being a litigator at a large law firm, the debt you incur will likely represent a small fraction of your career earnings. But if you are accepted at a fourth-tier law school where only some graduates obtain full-time jobs in law firms and make modest salaries – and you are not offered a substantial scholarship – you should probably not attend.

Ultimately, make sure to review a law school’s American Bar Association 509 report to assess, among other things, the employment outcomes of its graduates, the types of jobs that graduates obtain, and their average starting salary.

6.    Take care of your physical and mental health.

It is no secret that many lawyers are unhappy and that the practice of law is stressful. This should not be surprising; how would you feel if you had to spend hours, days, and years reviewing documents, answering interrogatories, responding to nonsensical motions, and dealing with difficult clients (and unpleasant colleagues who somehow managed to find their way into the legal profession).

To be sure, one survey found that 45% of lawyers suffer from depression, and 36% struggle with substance abuse issues.[3] And approximately 28% of lawyers get divorced, a number that is likely higher for those who work in large law firms.[4]

Given these facts, when entering law school and the legal profession, be sure to prioritize your physical and mental health. Develop healthy coping skills to deal with stress and adversity. Ask for help when you need it. If you are depressed or struggling with anxiety, for example, seek professional help and try cognitive behavioral therapy. Experiment with meditation. Exercise. Focus on getting optimal nutrition, take supplements if needed (e.g., multivitamins, fish oil), and get sufficient sleep. Have a personal life and pursue interests and activities that are unrelated to the law. If you allow law practice to control your life, you will find yourself burned out, unhappy, and unfulfilled.

Perhaps most importantly, avoid the common pitfalls. Do not abuse alcohol or drugs to manage stress. And do not be a victim. Do not blame others – or circumstances – for your problems. Take ownership of your life – and your choices.

7.    Be honest with yourself about what you want – and whether a legal career will make you happy.

As you proceed in your law school career, be honest with yourself. Are you passionate about becoming a lawyer? Do you understand fully the demands of law practice? Can you manage the stress, the long hours, and the difficult clients? Are you comfortable with drafting countless motions and briefs, and engaging in prolonged discovery? Are you willing to accept less time with family, friends, and partners? Can you accept the fact that, as a lawyer, you are probably not going to change the world and be the lead counsel in a landmark case before the United States Supreme Court?

If the answer is no, do not be afraid to make a change. At the end of the day, your happiness matters more than anything, and if you are not passionate about, and willing to make personal sacrifices for, a legal career, it may not be worth pursuing. Having the courage to make a change now will benefit you for a lifetime. Simply put, do what is right for you, not what others expect of you, or what you think you should do.

Life is short, and there is much more to life than law. Your family, your relationships, and your friends are far more important than winning a summary judgment motion or an appeal. So put yourself – and your happiness – first.

 

[1] See, e.g., www.leews.com Order Audio (CD) Program (incl. Primer [10th edition]) or Primer Alone (leews.com); Emanuel Law Outlines: Constitutional Law, Thirty-First Edition (Emanual Law Outlines): Steven L. Emanuel: 9781454824817: Amazon.com: Books

[2] Richard Fischl & Jeremy Paul, Getting to Maybe: How to Excel in Law School Exams (Brown Co., 1st ed. 1999), available at: Buy Getting to Maybe: How to Excel in Law School Exams Book Online at Low Prices in India | Getting to Maybe: How to Excel in Law School Exams Reviews & Ratings - Amazon.in.

[3] See Priscilla Henson, Addiction and Substance Abuse in Lawyers: Statistics to Know (July 5, 2022), available at: Addiction & Substance Abuse in Lawyers: Statistics to Know (americanaddictioncenters.org)

[4] See Leslie Satterlee, A Fool For a Client: Why Lawyers Should Not Represent Themselves in Divorce, available at: A Fool for a Client: Why Lawyers Should Not Represent Themselves in Divorce – woodnicklaw.com; Harrison Barnes, Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give, available at: Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give | BCGSearch.com

Advice to 1Ls--Part I

In the next few weeks, a new class of law students will flock to law school campuses for orientation and the start of classes. If you are one of those new students--welcome! Over the next few weeks, you will be inundated with advice on how to survive law school. Allow me to chime in with advice gathered from a decade plus of teaching and attending law school twice--one as a student and once as the spouse of a law student. Because this blog is focused on appellate advocacy, I will give a few tips too for students interested in an appellate career. I am going to post 5 tips this week and 5 more next week.

#1—Read the syllabus, the course website, and emails from your professor. Before your class starts, you should carefully review the course documents. These documents should give you valuable information about the course, and your professor will expect you to be informed on what they contain—like due dates and formatting rules.  These course documents are similar to court rules, something that you as an attorney will be expected to know and follow when handling a matter.

#2—Go to office hours. Chances are really good that your professors are a cool group of people with vast legal experience and connections. You should get to know your professors by visiting them in office hours. Ask them questions about the course, ask them questions about the practice of law, ask them questions about their careers. These visits will provide you will valuable information about the course and about possible legal careers. It will also help your professors write you letters of recommendation since they will know who you are apart from the in-class experience.

#3—Go to cool events on campus.  Is there a judge coming to talk to a student group? Perhaps an alum is giving a talk on their niche practice area? Maybe a court is hearing oral argument on a case. Whatever it is, try to go to these events. Not only will you likely get free food, but you will also learn something new. When I was in law school I got to meet the Watergate prosecutor Archibald Cox and his wife of 70 years. He was being honored with a portrait unveiling and the whole Harvard Law community was invited. I was surprised that few students attended, but I am glad that I went!

#4—Recognize that you will probably suffer from imposter syndrome. Unfortunately, at some point during your 1L year you will probably suffer from imposter syndrome, meaning you will think that you only got into law school by some sort of lucky (or maybe unlucky) mistake and you are not worthy to be a law student. Imposter syndrome stinks but is also very prevalent. I had (sometimes still have) it. I suspect that most law students do too. Law school is hard and overwhelming, especially for first generation students. I would encourage you to talk to a trusted mentor about your feelings, and maybe even some close law school friends or faculty if you feel comfortable. You will be surprised what you hear!

#5—Understand that the amount that you talk in class rarely correlates with good grades. I am not telling you to not participate in class—you should participate. But please understand that those students who talk all the time (we called them gunners) do not have their #&*$ together any more than you do. Nearly everyone in your class is struggling to adapt to law school.

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

In Praise of Bryan Garner’s Approach to Minimizing Passive Voice

Many of my students believe I “prohibit” any use of passive voice.  I certainly discourage passive voice, especially in objective writing.  As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity.  As Bryan Garner explained in his 2019 Michigan Bar Journal piece:  “Stylists agree” passive voice is “generally weaker than active voice.  It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.”  Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34  (Dec. 2019).   

However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.”  Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).”  Id. at 34.

As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice.   Garner asks us to count the passive voice examples in this passage:

In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.

Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.”  Id. at 35.   Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.   

I especially like Garner’s explanation:  “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).”  Id.  Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.”  Id. 

This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point:  “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).”  Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.”  Id.

Returning to the challenge passage, Garner says there are six passives:  “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.”  Id.  Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together.   Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.”  Id. 

Finally, I would ask students to re-write this passage, with the most direct language possible.  Students, and lawyers, can then compare their revisions to Garner’s: 

In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.

Id.  Garner removed what he calls “zombie nouns” along with passive voice, and made the  “reader’s job” much easier.  Id.  Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.

Bluebooking

A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.

First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.

Next, as Professor Alexa Chew explains in Citation Literacy,[1] citations provide the law-trained reader with important information about the weight of the cited authority.[2] Is it binding or only persuasive? Is it a recent case or well-settled law?[3] Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.

Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.

That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.

Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).

 

[1] Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).

[2] Id. at 872-73.

[3] We’ll leave what “well-settled” law is for another day.