Appellate Advocacy Blog

Neurodiversity and Legal Advocacy: Tying it All Together

Tying it all Together

Understanding neurodivergence is important if we are going to succeed as advocates. When we deal with colleagues and clients, when we mentor or teach students and associates, and even as we draft our briefs and make our arguments, we must recognize that we are dealing with people who may process information and think differently than we do. And we should be ok with that.

Even as a neurodivergent person myself, growing up dyslexic, this isn’t always easy for me to do. I fumble a bit even with my own family. 

My daughter (who gave me permission to share) is clearly intelligent. I have always had high expectations for her. When she entered middle school, her grades began to suffer and she was obviously unhappy. I couldn’t understand what had changed, and I made moral judgments about her work ethics. She was underperforming (a classic sign of neurodivergence) and clearly just needed to work harder.

Recently, she was diagnosed with ADD and level 1 autism. And as I dug into the research I’ve shared, I came to understand that her issues weren’t with laziness, but with attention, overstimulation, and organization. And that as these were addressed, and her strengths were recognized and grown, she could thrive.

You, your students, or your associates can too. It starts with awareness. Then we need to take action. But what if we are not given a diagnosis?

Disclosure 

At younger stages, it’s the responsibility of school administrators to make sure children with learning disabilities are assessed and identified, regardless of their desire for confidentiality. At college and in the workplace, it’s completely up to the individual to self-identify. As a result, over 94% of high school students with learning disabilities receive assistance, while just 17% of college students receive access to the same services. 

At work, accommodations are required when disabilities are disclosed. But again, there is a stigma to that disclosure. Studies show that persons with disclosed disabilities tend to make less than those who do not disclose. And by the time attorneys, in particular, enter the workforce, they likely have self-accommodated in many ways, and are hesitant to disclose any disability.

Fortunately, the current model of disclosure and accommodations isn’t the only way to address neurodivergence. We can, instead, modify the environment for students and attorneys alike in ways that work better for everyone using a model known as universal design.

Universal Design for Neurodivergent Success

Universal design started as an architectural concept. What if the physical environment people learned and worked in was more usable for everyone? Then the space would not need to be modified for a particular disability, and all users would find it accessible.

To do so, several objectives must be met:

1. all users must find the product or space useful;
2. the space should be flexible to accommodate differences (i.e., not just right hand desks but rather ambidextrous desks);
3. the facility must be simple and intuitive to use;
4. information must be perceptible to everyone;
5. there should be a high tolerance of error to minimize harm from accidents;
6. using the environment should require low physical effort; and,
7. there should be adequate size and space for all bodies to navigate.

Applying some of the lessons we’ve learned from looking at the strengths and weaknesses of ADD, dyslexia, and autism, there are several universal design considerations to make learning and working more successful. Noise should be reduced. Lighting should not be too harsh. Colors should be muted. Privacy should be given. Hours should be flexible. Working from home should be considered as an option.

Most of these environmental adjustments are good for everyone.  

Over half of high performing employees say their environments are too distracting. These changes largely help to reduce distraction and enhance productivity for everyone.

In academics, the two most common accommodations requested regardless of diagnosis are longer times for testing and a quiet place for that testing. These accommodations are relatively inexpensive, and if applied within the larger classroom setting, there would be no need for many students to self-identify. All would benefit.

Universal design also applies to teaching. Multiple teaching modalities help everyone. While most of us older lawyers learned audibly, through lectures, our new generation of students and associates are much more visual. They have learned to learn on the internet with videos and graphics. So using slides, videos, and electronically accessible information textually helps everyone.

This access to software and internet resources is particularly important for those with disabilities. If your information is accessible on the internet, they can use their own accommodation software, like readers, to better use that information. Allowing access to grammar and spellchecking features is particularly important for those with dyslexia. And scheduling and calendaring software (and training) is useful for everyone, but particularly those with executive function issues.

Finally, these tips from Haley Moss (in her book Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2010)) on managing a neurodiverse practice are useful for any classroom or firm: 

1. Believe when someone tells you something is difficult
2. Be considerate of sensory processing differences
3. Set clear timelines and deadlines and avoid surprises
4. Use different communication methods
5. Check in and encourage feedback, encourage breaks

Closing Thoughts

Hopefully, if you have followed this series of blogs, you have been encouraged to make your office, firm, or classroom more inviting for the neurodiverse. Recognizing that there are strengths alongside weaknesses, that numerous accommodations exist, and that there are strategies for helping the neurodiverse thrive is a big first step. Applying general principles of universal design will help make your practice, office, or classroom more equitable. And as more people become comfortable with disclosing -- perhaps in response to making these changes -- more custom-tailored accommodations can be developed, so that everyone can thrive, no matter how differently they think.

All prior posts with suggested readings:

Neurodiversity and Legal Advocacy - Introduction

Neurodiversity and Legal Advocacy - Dyslexia

Neurodiversity and Legal Advocacy - Autism

Neurodiversity and Legal Advocacy - ADD/ADHD

 

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

Dealing With Difficult Clients

Most attorneys have encountered difficult clients. For example, difficult clients may display narcissistic tendencies (covert and malignant), a sense of entitlement, extreme verbosity (i.e., the “loudmouth”), a need for constant attention, and sheer ignorance of the law while believing that they know more than you. Dealing with difficult clients can be stressful, exasperating, and infuriating.

Below are some tips on how to deal with difficult clients.

    1.    Set boundaries.

Difficult clients will often call you incessantly, demand updates, and make unreasonable demands. Indeed, they often believe that their case is the most important in your firm and that you should prioritize their needs over those of other clients.

Consider the following example:

Client: I called you four times yesterday, and you never got back to me. For the money I am paying you, I deserve to get a callback. And you have not given me an update on our case in over a week, and I feel neglected and disrespected. If you are not interested in representing me, I can find someone better. Plus, I have a new theory of the case that I want you to research immediately. I am going to text and email you as soon as I get home from work, and I need to hear from you.

To deal with these insufferable jerks, you must, at the initial client meeting, set boundaries to ensure that the client does not cause intolerable stress and affect your ability to reach a positive outcome. Setting boundaries includes, but is not limited to, providing an honest assessment of the likely cost of the litigation, explaining that you only answer emails during work hours, that you will respond to phone calls and emails within a specific time (e.g., twenty-four or forty-eight hours), and that you only meet when necessary to discuss case updates. Setting boundaries also requires you to explain what you will not accept, such as daily phone calls or emails, unreasonable demands, or disrespectful behavior.

Additionally, understand that difficult clients often seek little more than attention, relying on you to appease their anxiety and uncertainty about the outcome of their case, which can consume hours of your time. To avoid this, use the “gray rock” technique, which requires you to appear uninterested, non-responsive, or emotionally neutral. Put simply, do not get sucked into the client’s drama. If you do, the client will view you as a source of narcissistic supply, or emotional validation, which will result in the client contacting you incessantly and without regard for your professional or personal space.

        2.    Set realistic expectations.

Always be honest with clients about the merits of their cases and the damages they will recover if a positive outcome is achieved. Never over-promise and make representations that the facts and law do not support. If you do this, you are setting yourself up for failure and a malpractice claim. Of course, difficult clients can often appear so sympathetic or charismatic that you feel tempted to provide more hope to the client than realistic. Never give in to this temptation. It invites disaster.

Consider the following example:

Client: So last month I went to the hospital because I sprained my ankle and was in so much pain. The hospital gave me pain medication and I vomited for three days and felt dizzy the whole time. And they never told me about the side effects of the drug. Then, my third cousin, who just started studying at some law school, said I could sue and get millions because she read a case in her class where some lady got millions because she got burned by McDonald’s coffee that was too hot. I want to sue them for fifty million dollars because of the emotional distress this has caused me.

In this situation, immediately explain that he cannot receive fifty million dollars for such a claim. Be honest. Tell the client that any recovery is unlikely, that if the client prevailed, such recovery would be minimal, and that the cost of litigating it would be far more expensive than the money the client would receive. The client may be disappointed, but your integrity matters far more than the client's disappointment.

    3.    Educate clients about the law.

Clients will often think they know more about the law than you. Be sure to explain respectfully that they do not.  State that you have the knowledge and experience to assess the merits of their case and provide a simple but thorough explanation of the relevant legal principles that will govern the issues in the case.

Consider the following example:

Client: I went to Bob’s Pizza Place yesterday and I ate a whole pizza and some pasta because I was so hungry. Before that, for about five days, I had a horrible stomach virus because I ate food at Billy’s Seafood Palace that gave me food poisoning. Then, when I finally felt better, I went to Bob’s and after I ate the pizza and pasta, I got sick again and was vomiting for three days. I missed work and got fired. Then I read an article that said you could sue businesses for negligence when they make mistakes and you are harmed. It is like those tobacco companies who had to pay a lot of money because their cigarettes gave people lung cancer. It is called negligence and I have been researching it and almost feel like a lawyer now.

When a client says something like this, always remain polite and respectful, and show empathy. At the same time, you must explain to the client that a negligence claim will not succeed based on these facts. In so doing, explain the elements of negligence and why, based on the facts, the client's claim does not meet at least one of the elements, particularly causation. If you allow the client to develop a false hope regarding the merits of a case, you are again inviting disaster and a malpractice claim when, inevitably, the case is dismissed.  

    4.    Just say no.

Sometimes, you should turn a difficult client away if they will so be “high maintenance” that the emotional cost of representing them outweighs the benefit of achieving a positive outcome. Be wary, for example, of individuals who display covert or malignant narcissism, are emotionally unstable or severely mentally ill, talk forever and with no focus or restraint, are overly aggressive and demanding, or treat you with disrespect.

Consider the following example:

Client: Now listen. I got money. I got connections. And I had my choice of any lawyer in this state, but I chose you. Do you know what that means? It means you answer the phone whenever I call you. It means you get me results. It means you do what I say. Because you work for me. My last lawyer did not listen to me and I straightened him out, so do not make any mistakes. I mean, I’ve been divorced five times, and now I do not tolerate anyone who does not listen to me.

Just say no.  Run far away – and never look back.

It does not matter how much money these jerks will pay you.  Your happiness, stability, and sanity are far more important than the misery that these people will invariably inflict.

In law and life, you will encounter horrible people. Knowing how to deal with them -- and when to eliminate them from your life – is critical to professional and personal well-being.

Neurodiversity and Legal Advocacy: Autism

Introduction

The final form of neurodiversity I will address individually is autism. Autism is a complex neurological condition that manifests in different ways. It often includes differences in social communication and interaction, sensory processing, intense passions or interests, and repetitive behavior. About 2.2% of American adults are on the autistic spectrum.

Haley Moss is an attorney who was diagnosed with autism as a child. Here is how she describes her experience:

I was a late talker. I did not speak until I was four years old, and the language I did use was echolalic - often repeating words and phrases my parents used originally heard from cartoons or movies. I regularly stim in order to feel less nervous or to feel a form of sensory input, whether it is twirling my hair, fidgeting, or flapping my hands as form of full body joy when I am so excited, I cannot keep it to myself.

My special interests have changed over the years. While everyone has hobbies or topics that they find enjoyable or fascinating, with autism, it is often the depth of the knowledge that separates the interests from neurotypical pleasure. As a little kid, I was once all-knowing about Ancient Egypt before having an all-encompassing knowledge of the Harry Potter books and movies, to an encyclopedic-level knowledge of Lilly Pulitzer prints and patterns. I would go so far as to say that in law and legal practice, having one particular niche area of practice you enjoy is incredibly similar to an autistic special interest (writing and taking about disability law, the Americans with Disability Act [ADA], and neurodiversity, for instance, surely feels that way for me!).

The executive functions prove to be the most difficult for me, along with social interactions. Sometimes I get so engrossed in a task or something I am passionate about that I forget what time it is or what else to prioritize. I make a lot of lists to make sure the most important things get done. Socially, I will miss the sarcastic joke or put forth double the effort into networking and friendships because it can feel unnatural or far more difficult than it may be for a neurotypical person.

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals 16 (2021)

Strengths

As with other types of neurodiversity, a strengths-based approach to autism helps identify how this different way of thinking can strengthen a practice or legal career, and helps educators focus on leveraging those strengths for their students. The following are some of the strengths identified in those with autism.

• Attention to detail
  Autistic people can enter states of tunnel vision or extreme focus, which, coupled with a strong attention to detail, can lead them to excel at detail-oriented work, including document review, spreadsheet analysis, and similar tasks.
  
  
• Memory
  Many people with autism have excellent focused memory systems, leading to expertise in subject areas and strong recall.
  
  
• Problem solving
  According to some studies, autistic people are up to 40% faster at problem solving, and less likely to be swayed by emotional impact when making decisions.
  
  
• Strong work ethic
  Because of strengths in focus and problem solving, many employers say that autistic employees demonstrate a strong work ethic and satisfaction with tasks, including repetitive tasks.

Weaknesses

As with with forms of neurodiversity, there are attendant weaknesses that are common in people with autism. These weaknesses can be managed and accommodated in various ways.

• Social cue interpretation and display
  Autistic people often have a difficulty in reading emotions, and often are perceived to be emotionless or “flat” by neurotypical people. Awareness of this potential difficulty can prevent misunderstanding.
  
  
• Rigid thinking
  Many autistic people do not respond well to change, and this includes thinking outside of one’s own internal system of thought. Preventing last-minute surprises and change can be very helpful to someone with autism in the workplace. Scheduling events and calendaring deadlines with "tickler" dates to avoid surprises can be very helpful.
  
  
• Self stimulation
  Self-stimulation, or stimming, is a coping mechanism by some people with autism, where they engage in some sort of repetitive physical activity to lessen their anxiety. As Haley Moss describes her own hair twirling or hand movements, it is common for those with autism to use physical movement in ways that can seem distracting. While those with autism may be self-accommodating or undergoing behavioral therapy, cutting down the noise and distraction of work environments is also helpful to avoid the stressors that can lead to the behavior.
  
  
• Compulsions and obsessions
  Many autistic people have intense focus, sometimes resulting in an obsession with a particular subject or object. Setting timers or otherwise blocking out time for projects can help cut short focus on one thing when others must be addressed.
  
  
• Sensory overload
  Many autistic people have difficulty filtering out sensory data. As a result, they have to process all of that information, leading to sensory shutdown or meltdowns. Again, a quiet work environment, without harsh lighting or persistent noise, can be very helpful.
  
  
• Executive functioning
  Many autistic people have difficulty in accomplishing complex tasks when given to them as a block. Some may focus on certain details and miss the big picture. Others may have difficulty in organizing thoughts or paying attention to a given task. Assigning projects in steps rather than as an entire finished product can be extremely helpful.

Adaptations and accommodations

My next entry will answer the "so what now?" question some of you may have. You have been introduced to the concept of neurodiversity and you have some familiarity with the strengths-based approach to leveraging and coping with the strengths of weaknesses of dyslexia, ADD, and autism. But not every student or associate will disclose their particular neurodiversity, and many remain undiagnosed. Fortunately, there are best practices to employ in the classroom and workplace to help those with neurodiversity maximize their potential, and those practices are good for those who are neurotypical, as well. More on that next time.

Further Reading:

https://embrace-autism.com

Haley Moss, Great Minds Think Differently: Neurodiversity for Lawyers and Other Professionals (2021)

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

There's No Such Thing As "Legal Writing"

In law school, students take legal writing courses and learn, among other things, how to: (1) analyze and synthesize the law; (2) organize arguments using IRAC/CRAQ; (3) eliminate repetition and irrelevant facts from a legal document; (4) address counterarguments and acknowledge weaknesses in your case; and (5) cite to and rely upon legal authority. These skills are certainly useful and will help students maximize the persuasiveness of a motion or brief.

However, law students and lawyers should recognize that there is no such thing as “legal writing.” There is only excellent writing. In other words, whether you are writing an appellate brief, a fiction novel, a narrative non-fiction book, a textbook, a biography, or, for that matter, directing a movie, the principles and techniques of great writing remain the same.

Great writing has the following characteristics – regardless of whether it is in a legal context – and should be used by law students and lawyers to ensure the quality and persuasiveness of their legal documents.

1.    Hook the reader.

Why should readers care about what you have to say? To engage readers, you must hook them at the beginning of your motion or brief. This requires a powerful opening sentence, a compelling story and narrative arc, a vivid description of the critical events, and an appeal to the reader’s emotion (where appropriate) and sense of justice. Put simply, a great brief is like a great movie.

Consider the following examples:

Example 1:

In this case, the defendant is guilty of murder. On April 17, 2024, she murdered her husband. She did it because she wanted to be free to pursue another relationship with a man who refused to be with her while she was married. So she planned the murder and killed her husband in a very heinous manner that caused tremendous suffering and pain.

Example 2:

On April 17, 2024, at 10:45 p.m., the defendant stabbed her thirty-seven-year-old husband 124 times. Her husband screamed as he experienced unimaginable pain. He begged and fought desperately for his life. But the defendant ignored these pleas. Instead, she plunged a sharp knife into her husband’s body relentlessly. After being stabbed 123 times, seeing that her husband was still alive, the defendant plunged the knife into her husband’s chest one last time, ending a life that had so much promise. And she killed her husband solely because she wanted to be with another man.

The latter example, although not perfect, is more effective. It shows, in vivid detail, how horrible the defendant’s crime was and appeals to the reader’s emotions and sense of justice. After all, if you read the latter paragraph, how would you feel about the defendant? You’d probably want to convict her.

Also, make sure that your introduction is concise. If it is too long, you will lose (or at least annoy) the reader. Think about it: how many times have you gone to see a movie that was scheduled to begin at 8:00 p.m., only to have the movie begin at 8:40 p.m. because there were seven or eight previews? This understandably frustrates many moviegoers, and that frustration may affect how they view the feature.

You never want this to happen when drafting a motion or brief. If you write a lengthy introduction, you risk alienating the reader, and when that happens, it will affect the reader’s view of the credibility and persuasiveness of your arguments. Indeed, a critical part of hooking the reader is to get them to like the writer, which increases the odds that the reader will be captivated by and emotionally invested in your story (and give you the benefit of the doubt in close cases).

2.    Maintain your credibility.

Most people remember the Friday the 13th movie franchise, where Jason Voorhees mercilessly kills numerous groups of unsuspecting camp counselors. Although the first installment of Friday the 13^th received fairly positive reviews, the dozen or so sequels received almost uniformly negative reviews. Why? Well, at least in part, it was because no matter how many times Jason Voorhees was killed, including being axed to death, nearly decapitated, drowned, and ejected from a spaceship, he miraculously came back to life. What nonsense. The Friday the 13th sequels were critically panned because the story had no plausibility or credibility whatsoever.

Never make this mistake in your writing. For example, if you are representing a defendant who is charged with manslaughter for sending text messages to her husband that encouraged him to commit suicide, don’t say this:

The defendant is not responsible for this tragic death. For years, the defendant and her husband enjoyed a blissful marriage. However, the defendant’s husband suffered from depression for many years and, despite receiving treatment for depression and taking numerous medications, failed to improve consistently and substantially. Thus, when the defendant’s husband texted the defendant and expressed a desire to end his life, the defendant agreed that this was a prudent decision, and the defendant, despite the unimaginable difficulty, supported her husband’s choice. In short, this was an act of love. It was an act of mercy. And the defendant misses her husband every day.

Yeah, right. And Elvis faked his death. This is so utterly ridiculous that it requires no further explanation.

Additionally, make sure that your argument is consistent with and supported by the facts and law. Never misrepresent or mislead. Do not make arguments that fail to pass the smell test. Be honest with the reader. Acknowledge weaknesses in your case, such as unfavorable facts and legal authority, and explain why they should not affect the outcome you seek. After all, when you lose credibility, you lose your case – and reputation.

3.    Get to the point.

Over the years, many audiences have watched movies that, while in some instances quite good, could have been great except for the fact that they were insufferably long. For example, Titanic, which won the Academy Award for Best Picture in 1997, was a very good movie but far too long. Specifically, it took three hours and fifteen minutes to tell us what we already knew.

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

Similarly, Pearl Harbor was needlessly three hours long. The Japanese attacked Pearl Harbor. It resulted in a tragedy of immeasurable proportions. We don’t need three hours to understand what we already know.[1]

Why are some movies too long? Because they include, among other things, unnecessary sub-plots, dialogue, and characters.

Poorly written motions and briefs make similar mistakes. They include irrelevant facts or law. They discuss legal issues that are tangential or entirely inconsequential. They incorporate unnecessary details. They are unduly repetitive. They cite five cases to support a basic legal proposition. In so doing, they tell a story that is more akin to Friday the 13th, Part 9 than Gone With the Wind.

When in doubt, err on the side of brevity rather than length, as unnecessarily long motions or briefs will bore a judge, damage your credibility, and decrease your chances for success. Get to the point quickly. Tell the court what you want and why you should get it. In many cases, less is more.

4.    Polish.

Your legal filings must be polished. They should have, among other things, no grammatical or spelling errors, artificial emphasis, unnecessary block quotes, and useless string cites.

If you cannot follow these rules, why should the reader trust that your arguments accurately reflect the law and facts?

5.    Appeal to common sense.

Judges are human beings, not robots. They do not apply the law to the facts in a hyper-technical manner. Rather, they want to do the right thing. Accordingly, and particularly where the law is broadly worded and can be interpreted differently, do not just argue that the law supports the result you seek. Instead, explain why it is the right and equitable result. In other words, where appropriate, incorporate policy arguments in your motion or brief.

***

Ultimately, do not think that legal writing is a separate genre or specialized form of writing. It isn’t. Focus on being a great writer, not a great legal writer.

 

[1] Certainly, some movies are justifiably lengthy, but only because the complexities inherent in the story and its characters require such length. Examples include Gone With the Wind and The Godfather, Part II.

A Few Unconventional Writing Tips

Great writing is not simply about following conventional rules. It is about knowing when—and how—to use unconventional writing techniques that enable creativity and enhance persuasion. Below are a few unconventional writing tips that can improve the quality and persuasiveness of your brief.

1.    Reverse the narrative.

There is no such thing as “legal” writing. There is only great writing (and writers).

The best “legal” writers do not simply use conventional writing techniques. Rather, they are creative. They break the “rules” when necessary. Most importantly, they use the same literary techniques used in fiction, narrative non-fiction, and memoirs.[1]

One of these techniques is reversing the narrative. Doing so means that you begin your narrative at the end, not the beginning of the story. The objective is to create a compelling opening scene that captures the audience’s attention and enables them to invest in your story on a personal and emotional level.

Consider the following examples involving a hypothetical case where a plaintiff is suing an airline after a plane crash took the lives of the plaintiff’s two children.

Example 1:

Universal Airlines Flight 5638 departed from Los Angeles International Airport on June 12, 2023, carrying 128 passengers, and bound for Newark, New Jersey. The plane, a Boeing 737, took off without incident and climbed to 35,000 feet. For the next two hours, except for moderate turbulence, the flight proceeded without incident. However, approximately two-and-a-half hours into the flight, the pilots struggled to control the plane, as it lost altitude at a rate of 2,000 feet per minute. Attempting to regain control of the plane, the pilots increased the plane’s speed and rate of ascent, but despite these efforts, the plane entered an aerodynamic stall from which the pilots could not recover because their ability to control the plane diminished substantially. Sadly, the plane crashed in Omaha, Nebraska, killing the pilots, crew, and all 128 passengers. The National Transportation and Safety Board concluded that a fire in the plane’s cargo hold, which was caused by faulty wiring, caused the pilots to lose control of the plane and led to the crash. Universal Airlines was negligent in failing to identify and repair the faulty wires and, as a result, is liable to the plaintiff for damages.

Example 2:

Omaha, Nebraska, a vibrant city where the College World Series is played annually and was scheduled to begin on June 14, 2023, lost its innocence two days earlier on June 12, 2023. In a field spanning 500 yards, 128 bodies, most of which were unrecognizable, lay dead. Among them were fourteen children, including five under the age of three, four beloved high school teachers, and a husband and wife who were traveling to New York with their children to visit Manhattan for the first time. Scattered across the debris field were clothing, jewelry, and stuffed animals. The most heartbreaking discovery was a letter written by a passenger as the plane was going down, which read “Mom, I will always love you.” The tragedy’s magnitude is immeasurable, and the most disturbing aspect is that it was preventable. Universal Airlines had the ability—indeed the responsibility—to fix the faulty wiring in Flight 5638’s cargo hold and to ensure the safety of its passengers. They did not. Valuing profit over safety, Universal Airlines, knowing that the wiring was faulty, deemed it an “acceptable” risk and continually certified that the plane was airworthy, even though it knew that the wiring was essential to maintain the plane’s hydraulic system. As a direct and proximate result of this negligence, 128 passengers never made it to New York. Their final resting place is in Omaha where only a few articles of clothing, stuffed animals, and a letter stating, “Mom, I will always love you,” remain.

This second example, while not perfect, is better. First, it begins at the end and, in so doing, captures the reader’s attention. Second, it appeals to the reader on a personal and emotional level by describing in vivid detail the gravity of this tragedy. Third, it personalizes the victims and emphasizes the need to reach a just result that compensates their families for this tragedy.

Ultimately, think of writing in the same way as directing a movie. Does your narrative hook the audience and maintain its attention? Does it appeal to their emotion? Does it include vivid descriptions that place the reader in the character’s shoes as the character is experiencing noteworthy events? Does it relate to you on a personal level and leave a meaningful—and lasting—impression? Often, beginning at the end is an effective technique by which you can achieve these objectives.

2.    Tell a non-linear story.

Sometimes, you should avoid telling a story, such as in a statement of facts, chronologically. This can produce a tedious narrative that loses the reader’s attention and fails to engage the reader on any meaningful level. It is often more effective to embrace non-linear storytelling, in which you focus your narrative on the major events in the story to highlight, for example, the damage your client has suffered or the appropriateness of the relief you request.

Consider the following examples involving a defamation lawsuit, in which the plaintiff claims that the defendant’s alleged defamatory statements led to substantial reputational harm.

Example 1:

The New Jersey Bobcats drafted the plaintiff in the first round of the major league draft after the plaintiff had a batting average of over .325 during three seasons at the University of Southern California. After two seasons in the minor leagues, the plaintiff was called up to the Bobcats’ major league team, where he played in forty-seven games, batting .279 while committing no errors at shortstop. It quickly became evident, however, that the Bobcats’ manager, Mike Johnson, did not like the plaintiff, likely because the Bobcats had chosen to call up the plaintiff to the major leagues rather than the Bobcats’ other top prospect, Jason Warner, whom Johnson stated publicly was a superior player. Angered by this decision, Johnson berated the plaintiff repeatedly in front of the players and fans and benched the plaintiff for the last two games of the regular season. After the season ended, the plaintiff met with the Bobcats’ general manager and requested to be traded. Subsequent trade talks with several teams, however, proved unsuccessful because of an article published by the New Jersey Times in which Johnson stated that the plaintiff was a bad baseball player, selfish, lazy, and uninterested in the team’s success. The plaintiff also discovered that Johnson had spoken to many teams’ general managers and warned them against acquiring the plaintiff. As a result, although initially expressing interest, no teams decided to acquire the plaintiff, and he was demoted to the Bobcats’ minor league affiliate the next season and eventually released. Johnson’s statements were defamatory and entitle the plaintiff to damages.

 Example 2:

Mike Johnson, the head coach of the New Jersey Bobcats, despised the plaintiff. Indeed, Johnson stated publicly to the media and general managers throughout the major leagues that the plaintiff was a “horrible person,” “a cancer in the Bobcats locker room,” a “below average player who could never succeed in the major leagues,” “a team’s worst nightmare,” and “one of the worst hitters he has ever seen.” Additionally, in the days before he was demoted to the Bobcats’ minor league system, Johnson publicly mocked the plaintiff in the Bobcats’ locker room, calling him a “joke” and “the worst thing to happen to the Bobcats in the last twenty years." Johnson made these statements even though the plaintiff batted .279 – and committed no errors -- in forty-seven games as the Bobcats’ starting shortstop.  Due to Johnson’s abusive behavior, the plaintiff requested a trade, and despite six teams expressing initial interest in acquiring the plaintiff, every one of them declined to pursue the plaintiff after Johnson made the above statements to their general managers. These statements, which were false and defamatory, ruined the plaintiff’s reputation and made it impossible for the plaintiff to pursue the successful baseball career that he had worked so hard for and rightfully earned.

Again, the second example is not perfect but is better than the first. Instead of telling the story chronologically, the second example begins with Johnson’s statements, reflecting the extent of Johnson’s hatred of the plaintiff, and which the plaintiff’s performance on the field contradicts. As a result, the second example portrays Johnson as an unsympathetic figure and someone who intentionally disseminated false information to harm the plaintiff’s reputation. This highlights the benefit of telling a story non-chronologically where the facts warrant.

3.    Break the rules.

This point requires little explanation. In law school, you will learn about IRAC/CRAC and conventional writing techniques, which are useful in many instances. However, great writers know that sometimes you should break the rules.  For example, sometimes you should be redundant. You should use the passive voice. You should use a little hyperbole. You should tell, not show, especially if showing involves including irrelevant or unnecessary details. Knowing when to break the rules is a hallmark of great writers.

In short, the best writers know how to think, not just how to write. They think about how best to tell a story, and sometimes that involves breaking the rules to maximize the persuasiveness of an argument.

 

[1] If you doubt this, read John Roberts’ brief in Alaska v. EPA, which is among the best briefs written in a case pending before the United States Supreme Court.

Neurodiversity and Legal Advocacy: ADD

I.     Introduction

Attention Deficit Disorder is another type of neurodivergence, or different way of thinking and processing, that impacts a large segment of the population. About 8% of the population has ADD. But according to one study, over 12% of attorneys have ADD.

For years, ADD was primarily referred to as hyperactivity. It was seen as a moral problem - a failure to focus - until recent advancement have shown that it is another heritable series of traits that leads to a different way of thinking, with manageable deficiencies and valuable strengths.

II.     Strengths

Bob Lobel is a legendary sports personality in Boston. He is known for his integrity, his ability to ad-lib, and his creativity. He attributes these strengths to his ADD.

“What makes me unique come straight from my ADD. I’m like the cut up in sixth grade. I thrive on chaos. I love to ad-lib. I think outside the box. Geez, I can’t think inside the box. I can change leads three seconds before airtime and make up the copy as we go on the air. This is just who I am. It comes naturally to me. That’s why I think of ADD as a gift, not as a liability.”

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder 30 (2005).

Many attributes of people with ADD are gifts. Helping them see and nurture those gifts is key to helping them thrive in their practice.

    A.    Creativity
Whether because of their divergent interests, or simply because they see things differently, people with ADD are often creative in their approaches to life. As problem solvers, they tend to be holistic, and often think outside of the box. They also tend to think quickly.

    B.    Charisma
People with ADD are often described as being charismatic. They are empathetic, because they have had to deal with their own struggles, and tend to approach life with a sense of humor. When they focus on a person, that person knows they are being seen. And their energy and creative approach to life can be contagious.

    C.    Energy
Many, but not all, of those with ADD have a strong sense of energy that they have learned to harness over the years. This energy can be motivation and inspirational in a team setting, and certainly valuable in long trials and other legal efforts. In fact, many people with ADD consider themselves to do better when under pressure. They thrive on the chaos that so often arises in our legal practices.

    D.    Focus
When a person with ADD gets into a focused “flow” state, it is hard to shake it. Many successful scientists, writers, artists, and attorneys with ADD attribute their success to their ability to enter into a state of flow for hours on end. In fact, lawyers with ADD often say one of their strengths is the ability to focus on their work under extreme pressure.

    E.    Tenacity
By the time a person with ADD has their law degree, they have overcome a great deal of adversity. They have developed grit. And they are unlikely to experience serious setbacks the next time they encounter difficulty.

III.    Weaknesses

For most of history, the primary effects of ADD - distractability, impulsivity, and restlessness - were seen as moral failings. As science progressed, it was discovered that ADD was a heritable trait, with physiological differences in certain regions of the brain that caused these issues. If you have a student or coworker with ADD, just telling them to “buckle down and pay attention” probably won’t work. They physically may not be able to do so. But they can learn coping mechanisms and structure.

By the time someone with ADD reaches law school, they likely have a successful suite of coping skills. But law school poses a unique challenge. There are few places where focus and discipline are more valued, and certain addictions more fostered, than in law school and the legal academy in general. And often, students and new lawyers have been plucked from their social safety nets to be placed into that environment.

One of the primary things those students need is the structure that a mentor, or group of similarly neurodivergent peers, can bring. Structure, accountability, and encouragement are important for everyone, but particularly those with ADD. Providing that in some way is vital.

In addition to providing that social support, the following are some areas of difficulty that those with ADD have found successful ways to manage.

    A.     Distractability
“Attention Deficit Disorder” is something of a misnomer. There isn’t so much a “deficit” of attention as a surplus that is spread a bit too thin. Coping with that surplus can take many forms.

First, good health can reduce distractability. Adequate sleep, daily exercise, and a good diet have all been shown to improve focus for those with ADD. Some supplements (like Omega 3 fatty acids) have been suggested to help as well. These all require structure, planning, and likely some encouragement. But it is worth the effort.

Many people with ADD benefit from medication. However, 20-30% of those with ADD say medication does not help. And there have been recent shortages in some medications, like Adderall. As a result, when, what, and how to take medication is a highly personal choice for those with ADD.

There are practical structural steps to take as well. ADD law students on Reddit recommend maximizing your word-processing screen so you won’t be tempted by other apps, or even just taking handwritten notes to escape electronics entirely. Some even try to turn each case into a full narrative, or illustrate the margins, just to keep themselves engaged.

    B.    Impulsivity
It can be difficult for a person with ADD to resist certain impulses. This includes addictions already dangerous to our profession, like drugs and alcohol. But it can also result in risk-taking and other damaging activities as they seek to scratch an itch they can't seem to identify.

Some people with ADD may also have a condition known as Reward Deficiency Syndrome. Regular dopamine release just doesn’t quite produce the same feeling of satisfaction or pleasure for people with RDS. As a result, they are more prone to addiction and risk-taking. Diagnosis of that condition can lead to important coping skills and training, and awareness of that potential susceptibility can make it easier to confront.

    C.    Restlessness
When your mind wants to focus on everything, it can be hard to maintain focus on one thing at a time. In men more than women, this can manifest in hyperactivity. In women it can instead appear as “zoning out.”

The opposite side of this coin is hyper focus, or “flow.” There are time when a person with ADD is so engaged that everything else disappears and time seems to stand still. But of course, it doesn’t. And so the flow state can be equally problematic if not managed, leading to the neglect of other important things.

    D.     Time management
ADD makes time management difficult. This is particularly true in the law, where you need to be sure you have read through and analyzed every detail in a given case or exam question. Law students with ADD recommend seeking accommodations for extra time on exams for this reason. They must read the questions several times to catch all the details, then outline and structure the answers carefully to address them all. Then, at the end, they need time to edit out the rabbit trails.

Similarly, law students with ADD stress the need to set early deadlines. In other words, if a paper is due December 1, and that is the only deadline, there is a strong temptation to wait until November 30th to start. So setting earlier deadlines for research completion, first draft, and final edits, for instance, is key.

The same holds true in practice. Deadlines are best broken down and set at earlier increments than what is imposed by the court. And extra time and attention to reading, organizing, and editing is essential.

To help, many students and attorneys with ADD recommend apps. There are free and paid apps that help with scheduling and reminders. The “pomodoro” technique of setting timers for tasks, followed by set breaks, is often helpful, and can be managed with apps.

    E.    Organization
ADD and organization are not friends. Messy desks, disjointed writing, and scattered schedules are fairly common. So purposeful organization is important.

Many lawyers with ADD recommend apps for assistance with organization. As with time management, there are free and paid apps to assist with organization and to keep you on target.

    F.   Emotional Tolls
Being labeled an underachiever with moral failings rather than a different way of thinking takes a toll on many people with ADHD. While they have accomplished much by the time they reach law school, or get their law license, they may be saddled with a great deal of insecurity or fear of criticism.

Perhaps one of the most important things a professor, mentor, or law partner can do is encourage their student or employee with ADD. Acknowledge and see their strengths and weaknesses, help them with time management and organization and focus, and see them thrive.

Additional Reading:

Edward M Hallowell, M.D. and John J. Ratey, M.D., Delivered from Distraction - Getting the Most out of Life with Attention Deficit Disorder (2005).

AdditudeMag.com

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

Should We Still Avoid Contractions in Formal Legal Writing?

As summer begins in full, I have been reflecting on . . . grading 1L appellate briefs.  I know, this is a sickness.  However, this spring, I marked more papers with incredibly odd contraction use than in past years, so I am pondering “didn’t,” wasn’t,” and more as I spend the summer working on my teaching materials for fall.

Like many, I teach new law students to move past any text-style informal writing with emojis, missing capitalization, and the like.  I assign reading on apostrophes and Oxford commas, and we even work on punctuation in class.  By spring, most of my students are much more precise and careful in their writing, with one large exception:  contractions. 

Given the increase in contraction use by some commentators, like Bryan Garner, and courts too, I expect to see occasional contraction use by my students.  See generally Bryan Garner, The Elements of Legal Style 81-82 (Oxford Press 2001); https://www.plainlanguage.gov/guidelines/conversational/use-contractions/ (explaining why Garner and some others believe contractions can make writing more accessible and understandable).  Many authorities advocating for the use of contractions also advise caution, however.  As one commentator explained:  “To use an example from MLA, if you’re writing to a judge requesting leniency in sentencing, use of contractions could seem dismissive. Like everything in writing, audience and context are key.”  Chris R., When Are Contractions Too Informal?,

https://proofreadingpal.com/proofreading-pulse/writing-guides/when-should-i-use-contractions/(Sept. 1, 2017).

Following this context approach, I suggest my students be direct and clear, but respectful, in their formal writing and avoid contractions in court filings.  Then, we discuss using the “house style” of their future firms, offices, or supervisors for guidance on contractions in their inter-office writing.  I quote Chelsea Lee, who noted:  “Asking whether you should use contractions in formal academic writing is sort of like asking whether you should wear a bathing suit to a party—it depends on the type of party. Is it a pool party or a fancy dinner?”  Chelsea Lee, Contractions in Formal Writing: What's Allowed, What's Not, https://blog.apastyle.org/apastyle/2015/12/contractions-in-formal-writing-whats-allowed-whats-not.html (Dec. 10, 2015). 

This year, however, some of my students included so many contractions in their briefs, despite my PowerPoint slides and rubric expressly banning contractions in briefs, that the contractions interfered with readability.  These students also wrote briefs right at the word limit, and the briefs often read as if the writers made seemingly last-minute decisions to save words by inserting contractions.  

Of course, I deducted writing style credit from these briefs based on the lack of readability caused by using so many contractions.  Nonetheless, I would like to give a greater incentive to follow my contraction suggestions more closely next year.  I want to convince students that there is no advantage to using many contractions instead of carefully editing.  Accordingly, for students’ formal appellate brief assignment, I might count most contractions as two words for word limit purposes.

On the other hand, as more judges use contractions in their published opinions, perhaps it is (dare I say, it’s?) time for me to embrace contractions in briefs too.  In a quick Westlaw search, I found cases on many interesting ways attorneys have tried to circumvent word limits in briefs, but no published cases complaining only about contraction use.   

As you draft your next briefs and motions, I urge you to think about your contractions.  And if you are also spending a possibly-unhealthy amount of time this summer on contractions, please feel free to let me know.

Questions to Consider When Preparing for Oral Argument

Most attorneys understand that you must know the record and the law when preparing for an oral argument before an appellate court.  You must craft a concise, organized, and compelling argument and be able to distinguish unfavorable law and reconcile unfavorable facts.

However, this is often easier said than done. Below are some questions that may help you prepare for oral argument.

    1.    How would you write the opinion?

If an appellate court asked you this question, what would you say?

You must be prepared to explain the reasoning underlying your position. For example, why is your position more consistent with the text of a constitution or statute? Why is your argument consistent with the court’s precedent? Have you considered unfavorable facts and law, and can explain why they do not affect the outcome you seek? How do you address counterarguments and why do those arguments lack merit?

Considering how you would write the opinion in your favor will help to organize your argument, explain your reasoning, and address weaknesses in your position.

    2.    How would you finish this sentence?

You should be able to state in one sentence why you should win your case.

For example, if you argue that imposing a sentence of life imprisonment without parole on a juvenile violates the Eighth Amendment. Imagine if an appellate court asked you to complete this sentence: “Imposing a sentence of life imprisonment without parole on a juvenile convicted of first-degree murder violates the Eighth Amendment because                                     .”

What would you say?

If you cannot state why you should win in one sentence, you will lack the clarity and conviction that excellent appellate advocates present in their arguments.  Consider the following responses to the question above:

Advocate: The Eighth Amendment, as this court is aware, protects against cruel and unusual punishment, and that determination depends on whether a punishment is consistent with evolving standards of decency that mark the progress of a maturing society. When applying this standard, this court should be mindful that circumstances today are far different from those that existed when the Eighth Amendment was adopted. When you consider how standards have changed, it is evident that executing juveniles, who cannot reason like adults, is cruel and unusual because it imposes on them a penalty that can only be justified for adults. The Eighth Amendment should not be interpreted to support unreasonable punishments and contemporary standards of decency counsel against such a draconian remedy.

This response is utter nonsense. It says nothing substantive whatsoever and shows that the advocate cannot concisely articulate why imposing a sentence of life imprisonment without parole would violate the Eighth Amendment.

Advocate: Imposing a sentence of life imprisonment without parole on juveniles convicted of first-degree murder violates the Eighth Amendment because such a sentence fails to consider that juveniles’ brains are not fully developed, disregards the principle that such sentences should only be imposed on the most culpable offenders, and ignores the well-settled rule that sentences must be proportionate to the severity of the offense.

 This response is not perfect, but it clarifies your argument and provides the court with three concise and concrete reasons that explain why imposing a sentence of life without parole on a juvenile violates the Eighth Amendment. That is far more persuasive and likely to garner support from the court.

    3.    Why shouldn’t the Court decide the case on grounds other than the ones you support?

Be sure to anticipate the alternative grounds upon which an appellate court might rule in your favor and be prepared to address them in depth. In so doing, do not argue that those grounds are insufficient, or that your position is superior. Rather, explain why the court’s reasoning is an equally justifiable way to support your position. Consider the following examples:

Court: Counselor, you argue that laws prohibiting abortion violate the right to privacy that is encompassed within the liberty protected by the Fourteenth Amendment’s Due Process Clause. But can’t you argue that such prohibitions violate the Equal Protection Clause because they place a unique and disparate burden on women that prohibits them from participating equally in society?

Advocate: That may be true, but our position, which is consistent with the Court’s precedent, is that prohibitions on abortion violate the right to privacy encompassed within the liberty guaranteed under the Fourth Amendment and that the court should rule on this basis.

   This response is terrible. That response tells the court that you reject the alternative reasoning that it may use to rule in your favor, and only want the court to rule based on the argument you presented. Instead of expanding the grounds on which the court could rule in your favor, this attorney just narrowed them and based his argument on a ground that the court did not even mention.

Consider this response:

Advocate: Certainly, the equal protection clause supports invalidating laws prohibiting abortion. As this court has recognized, such laws impose an undue and disparate burden on women and prohibit women from participating equally in the social and economic life of our society. Indeed, abortion prohibitions enshrine into law the very inequality and disparate impact that the equal protection clause prohibits. As such, these prohibitions violate the equal protection clause and, as we have argued, the liberty interest protected by the Fourteenth Amendment and this court’s jurisprudence.

This response is more effective. It acknowledges the court’s view that laws prohibiting abortion violate the equal protection clause, and it affirms that the equal protection clause could be a basis upon which to invalidate such bans while reinforcing the advocate’s original position that these bans violate the liberty interest protected under the Fourteenth Amendment’s Due Process Clause.

    4.    Why can’t the court rule on a narrower ground?

An appellate court may suggest narrower grounds to support a ruling in your favor. If it does, you should be prepared to support and justify those grounds and thus expand the bases upon which the court can rule in your favor. Consider the following example of a lawyer who is advocating that assisted suicide is a right protected under the Fourteenth Amendment’s Due Process Clause.

Court: Counselor, you acknowledge that your client is terminally ill, having suffered from Stage Four glioblastoma for approximately one year. Doesn’t your argument support a ruling that the right to assisted suicide only exists where individuals seeking to end their lives have terminal illnesses, and thus is not a license for anyone to end their lives simply because they wish to do so.

Attorney: Well, we argue that the right to assisted suicide should not be limited to a specific class of persons. Instead, this is a right that the liberty interests under the Fourteenth Amendment, and this Court’s jurisprudence, protect with qualification.

     This response is awful. The court is telling the lawyer that it wants to rule in his or her favor, but not on grounds as broad as the lawyer is advocating. The lawyer should take the hint and acknowledge that ruling on narrower grounds is justified because it supports a ruling in favor of the lawyer’s client and is a step toward recognizing a right to assisted suicide for all citizens in the future.

Consider this response:

Advocate: The liberty interest protected by the Fourteenth Amendment undoubtedly protects the right to assisted suicide for terminally ill individuals.  This right is based on the fundamental right to privacy and liberty recognized by this court and reflects the principle that if liberty means anything, it means giving terminally ill individuals the right to determine when to choose that they no longer wish to suffer.

   This response is more effective because the attorney pivoted from an absolutist position regarding the right to assisted suicide to a position that is more palatable to the court.  In so doing, the attorney enhanced his likelihood of succeeding and achieving a favorable result for the attorney’s client.

    5.    Will your position lead to unjust outcomes in future cases?

Good appellate advocates recognize that an appellate court does not care primarily about their client or the outcome of the case. Rather, the court cares about how its ruling will affect future cases, and whether such a ruling will lead to unjust outcomes in future cases. Accordingly, attorneys should advocate for a ruling in their favor on the narrowest grounds possible; doing so will make it less likely that such a ruling will lead to concerns about unjust outcomes in future cases.

Consider the following example, which involves a case where an attorney argues that life imprisonment without parole can be imposed on juveniles who commit first-degree murder.

Court: Counselor, if we adopt your rule, a ten or eleven-year-old child could receive a sentence of life imprisonment without the possibility of parole. Does that seem like a just result?

Attorney: Ten and eleven-year-old children are minors and, if they commit the heinous act of first-degree murder, nothing in the Constitution prohibits a sentence of imprisonment of life without parole. Indeed, such a sentence may be necessary to protect society and ensure public safety.

      This response is about as bad as it gets. The court is telling the advocate that it is not comfortable with adopting a categorical rule that all minors can be sentenced to life imprisonment without the possibility of parole. Knowing this, the attorney should immediately adjust his or her position and, to accommodate this concern, narrow the grounds upon which the attorney can achieve a favorable ruling. This attorney failed to do that.

Consider this response:

Advocate: Our position is not that any minor, regardless of age or circumstance, can be subject to a sentence of life imprisonment without parole. Rather, we argue that a categorical rule prohibiting the imposition of life imprisonment without parole of any minor, regardless of the severity of the crime, would allow some minors who engage in heinous acts of violence to escape responsibility for these acts. Of course, the court could rule in a future case that sentencing a ten or eleven-year-old minor to life imprisonment without parole violates the Constitution. Thus, a ruling in our favor does not prevent this court from addressing those concerns.

    This response is better. The attorney effectively addressed the court’s concern and explained that a ruling in the attorney’s favor would not prevent it from ruling that sentences of life imprisonment without parole for ten and eleven-year-old offenders violated the Constitution.

    6.    How does your argument impact the Court’s precedent?

In most instances, arguments that require a significant departure from a court’s precedent are less likely to succeed. Courts and litigants understandably value predictability and stability in the law, and arguments that would require a major departure from, or overruling of, precedent will be met with skepticism, particularly given the doctrine of stare decisis. Although there are exceptions, the best approach is to persuade the court that your argument (and the remedy you seek) is consistent with the court’s precedent or, at the very least, represents a logical expansion of, or imposes proper limits upon, such precedent.

***

When preparing for an oral argument, put yourself in the shoes of the appellate court judges. They want to reach a fair outcome that the facts and law support. If you can see your case from their perspective, and answer effectively the questions raised above, you will maximize your chances for success.

Neurodiversity and Legal Advocacy: Dyslexia

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

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

1.    Strengths

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

    A.     Big Picture Thinking

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

    B.     Problem Solving

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

    C.     Creativity

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

    D.     Empathy

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

    E.     Spatial Reasoning

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

    F.     Communication

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

2.     Challenges and coping mechanisms

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

    A.     Organization.

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

    B.     Spelling and Grammar.

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

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

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

    C.     Instructions.

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

    D.    Short-Term and Working Memory.

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

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

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

    E.     Managing Emotional Impact.

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

3.     Conclusion

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

 

Further Reading

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

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

 

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

Will Former President Donald Trump’s Conviction Be Overturned?

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

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

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

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

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

            Prediction: Unsuccessful.

    2.    The failure to change venue.

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

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

            Prediction: Unsuccessful.

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

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

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

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

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

            Prediction: Unsuccessful.

    4.    Judge Merchan’s evidentiary rulings.

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

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

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

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

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

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

            Prediction: Possibly successful.

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

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

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

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

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

            Prediction: Unsuccessful.

    6.    The charge that Trump falsified business records.

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

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

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

            Prediction: Unsuccessful.

    7.    Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

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

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

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

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

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

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

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

That is the point – and the problem.

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

            Prediction: Successful.

***

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

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

Trump’s conviction will be overturned.

 

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

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

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

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

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

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

 

Neurodiversity and Legal Advocacy: Introduction

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

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

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

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

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

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

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

Is the United States Supreme Court a Political Institution?

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

A.    Is the Court a “political” institution?

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

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

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

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

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

***

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

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

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

The answers to these questions should be obvious.

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

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

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

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

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

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

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

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

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

The answer is no.

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

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

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

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

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

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

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

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

***

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

 

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

[2] See id.

[3] See id.

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

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

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

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

How To Change Someone's Mind

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

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

People are captivated by powerful narratives.

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

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

Consider the following examples involving a defamation claim.

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

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

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

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

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

2.    Obtain agreement over common values.

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

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

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

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

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

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

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

3.    Show that you have empathy and maturity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5.    Listen and do not interrupt.

This requires little explanation.

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

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

Consider the following example:

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

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

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

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

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

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

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

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

***

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

Lessons in Resilience from Moot Court

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

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

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

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

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

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

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

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

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

Teddy Roosevelt is often quoted for saying:

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

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

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

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

1.    Have a strong introduction.

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

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

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

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

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

3.    Speak conversationally and confidently.

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

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

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

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

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

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

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

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

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

Consider the following example:

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

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

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

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

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

***

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

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

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

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

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

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

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

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

7.    Be reasonable.

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

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

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

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

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

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

***

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

An Argument Against Block Quotes

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

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

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

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

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

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

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

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

Tips for Dealing with a Difficult Adversary

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

1.    Remain calm, professional, and patient.

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

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

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

2.    Be kind and try to find common ground.

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

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

3.    When necessary, draw boundaries and command respect.

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

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

4.    Change your strategy.

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

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

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

6.    Remember that it is not about you.

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

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

***

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4.    Slow down and articulate clearly.

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

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

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

5.    Maintain your credibility.

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

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

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

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

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

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

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

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

***

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

[2] Id.

[3] Id.

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

The Colorado Supreme Court's Silly Decision

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

The Colorado Supreme Court based its decision on three findings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] See id.

[11] See id.

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

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

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

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

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

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

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

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