Sunday, May 22, 2022
Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.
Put simply, Camille Vasquez is a rockstar.
Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.
1. She is confident and owns the courtroom.
Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.
Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.
2. She uses non-verbal techniques effectively.
When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.
Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.
3. She knows how to adjust and follow up during cross-examination.
During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.
4. She knows how to strategically include comments that undercut a witness’s credibility.
Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:
“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)
“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)
“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)
The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.
5. She is prepared and has outworked Amber Heard’s attorneys.
This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.
Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.
6. She’s very smart.
Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.
7. She cares for and is a passionate advocate for her client.
This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.
In short, she is a good person – and good people make the best attorneys.
Saturday, March 19, 2022
My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments. As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more. In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process. My overall advice: make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.
I stress the one-sheet because it worked for me. Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes. Instead of fancy folders or notes, I suggest students distill the argument to one piece of paper. The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two. Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes.
As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice. I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching. In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting. See ABA Journal, Nov. 18, 2019,
I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.
Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here. Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.” See id. As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.” She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.” Id.
Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:
- Reread all briefs and entire case record, making notes and highlighting.
- Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
- Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
- Slice up your brief for the first draft of an outline.
- Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
- Question absolutely everything—even your own name. Stay up too late.
- Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
- Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
- Let at least three people down. (These are likely to be close friends or family members.)
- Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
- Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
- Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
- Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
- Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
- Reread everything.
- Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
- As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
- Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
- Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
- Check in with client.
- Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
- Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
- Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
- Reread everything. Condense argument down to a one-pager.
- Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
- Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
- Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
- Reread everything.
- Decide you hate your suit. Wish that suits of armor were still a thing.
- No—not sigh—breathe.
- Reread everything. Boil down outline to one word and the dancing woman emoji.
- Set four alarm clocks. Or is it alarms clock?
Id. Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article.
I wish you all great oral arguments, with one-sheets and humor as your guides.
Saturday, March 12, 2022
Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.
This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.
Below are several tips that attorneys should consider when preparing for an appellate oral argument.
1. Begin by addressing the weaknesses in your argument.
Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.
Appellate judges aren’t stupid.
They know the law.
They know the record.
And they know what your strongest arguments are – and they probably don’t care.
Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.
For example, in Maryland v. King, where the Court considered whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:
[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.
Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)
Justice Scalia: That proves absolutely nothing.
[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.
Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.
The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.
The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.
Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value.
2. Appellate courts care about their institutional legitimacy and your argument should reflect that reality.
The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.
That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.
Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.
3. The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.
When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.
But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.
That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.
To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.
For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).
4. Know who your friends are and target the swing justices.
Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.
Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.
To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.
5. Be conversational and relatable, not confrontational and rigid.
Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.
That approach is a mistake. An oral argument should be a conversation, not a confrontation.
Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.
Judges – like all people – may be more likely to agree with a litigant that they like.
Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.
6. Think of the one thing that you want to say – and say it in a way that the judges will not forget.
This needs no explanation.
Watch Matthew McConaughey’s closing argument in A Time to Kill.
 Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).
March 12, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (1)
Sunday, February 27, 2022
“God Hates Fags.”
“God hates you.”
Should the First Amendment be interpreted to protect this nonsense?
Some speech is so despicable – and so injurious – that it should not receive First Amendment protection. Indeed, individuals should be permitted to recover damages for emotional distress where speech:
- Intentionally targets a private and in some cases, a public figure;
- Has no social value (e.g., “God Hates Fags”); and
- Causes severe emotional distress.
Put simply, the First Amendment should not be construed to allow individuals to hurl vicious verbal assaults at citizens with impunity, particularly where such speech causes substantial harm.
By way of background, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Of course, protecting speech is essential to ensuring liberty, autonomy, and decentralized governance. Furthermore, the right to free expression promotes a “marketplace of ideas” that exposes citizens to diverse perspectives on matters of public and political significance, which is vital to ensuring an informed citizenry and a healthy democracy.
For that reason, offensive, distasteful, and unpopular speech – particularly on matters of public concern – should receive the strongest First Amendment protection. In Cohen v. California, for example, the United States Supreme Court correctly held that the First Amendment prohibited the prosecution of an individual who entered a courthouse wearing a shirt stating, “Fuck the Draft.” Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning. Also, in Hustler v. Falwell, the Court held that the First Amendment protected the satirical depiction of a preacher having sex with his mother in an outhouse. Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment. And in Snyder v. Phelps, the Court held that members of the Westboro Baptist Church had a First Amendment right to display signs stating, among other things, “God Hates Fags” and “Thank God for 9/11” outside of a church where a family was grieving the loss of their son. In most of these cases, the Court’s decisions rightfully affirmed that, in a free and democratic society, citizens must tolerate speech – and expressive conduct – that is offensive and unpopular. Otherwise, the right to speech would allow the government to censor speech that it subjectively deemed undesirable. That result would be to chill speech and render the First Amendment meaningless.
But is there no limit on what citizens can say or express?
To be sure, the Court has placed some limits on the right to free speech. For example, in Miller v. California, the Court held that the First Amendment did not protect obscenity, which is defined as speech that had no “literary, scientific, or artistic value,” and that appeals to the “prurient (sexual) interest.” One can legitimately question why speech must appeal to sexual matters to be obscene. Also, in Brandenburg v. Ohio, the Court held that the First Amendment did not protect speech that incited others to commit imminent and unlawful violence. And in numerous cases, including City of Renton v. Playtime Theatres, the Court held that states could place reasonable time, place, and manner restrictions on speech.
But outside of these limited categories, should the First Amendment protect speech regardless of how vile or harmful?
In other words, is “Fuck the Draft” the same as “God Hates Fags?” And should the First Amendment permit a magazine to publish a satire of a preacher having sex with his mother in an outhouse?
And should the First Amendment be construed to permit all speech, no matter how vile and harmful, if it targets private individuals, has no social value, and causes severe emotional distress?
Put simply, Snyder v. Phelps was wrongly decided.
As stated above, in Snyder, the Court, in an 8-1 decision, held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a church where a family was mourning the loss of their son in the Iraq War with signs that said, among other things “God Hates Fags” and “Thank God for 9/11.” The Court’s decision emphasized, among other things, that the First Amendment requires that citizens tolerate offensive speech such as that expressed by the Westboro Baptist Church.
The Court got it wrong.
When, as in Snyder, speakers target private individuals with despicable speech that has no social value and that causes severe emotional distress, those individuals should be permitted to recover damages for the intentional infliction of emotional distress.
Importantly, Justice Samuel Alito agrees and, in a persuasive dissent, explained that the First Amendment’s underlying purposes are not frustrated by allowing individuals to sue for emotional distress resulting from zero-value – and harmful – speech:
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. He [Petitioner] is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right … They appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. 1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.
I cannot agree either.
Moreover, as Justice Alito noted, the Westboro Baptist Church had alternative avenues by which to disseminate their hateful views. As Justice Alito stated:
Respondents and other members of their church … have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.
Perhaps most importantly, Justice Alito recognized that speech can – and does – cause substantial injury, and when it does, the First Amendment should not bar recovery for the intentional infliction of emotional distress:
This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.
Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide. There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.
The First Amendment should not be construed to protect this nonsense the law should not turn a blind eye to the harm it causes.
To be clear, this does not mean that state governments should be permitted to criminalize such speech. It does mean, however, that private, and, in some cases, public figures should be allowed to pursue a claim for the intentional infliction of emotional distress where they are intentionally targeted with speech of no social value that causes severe and lasting harm.
This argument should not be construed to support a hate speech exception to the First Amendment. After all, how would one define ‘hate speech?” Such an exception, due to its subjectivity and arbitrariness, would undermine significantly the First Amendment’s core purpose of promoting a marketplace of ideas in which unpopular, distasteful, and offensive ideas are tolerated.
But there is a limit.
As Justice Alito emphasized in Snyder, some speech is of such low value – and so harmful – that it supports a civil suit for the intentional infliction of emotional distress. Statements such as “God Hates Fags” and “Fags Doom Nations” have no literary, scientific, or artistic value and, although not sexual, can be every bit as obscene as the most revolting sexual images. The speech at issue in Snyder and Hustler had no social value. It was utter garbage and contributed nothing to public debate or the “marketplace of ideas.” But it did cause severe – and lasting – emotional distress. Thus, in some instances, there should be a civil remedy for victims who are intentionally targeted with such speech.
Of course, some will make the slippery slope argument, arguing that any restrictions on speech other than the narrow categories already delineated will result in a chilling effect and give the government the power to restrict any speech that it deems offensive or unpopular. This argument is without merit because it assumes without any evidence that any failure to fully protect even the most injurious speech – such as “God Hates Fags” – will inevitably lead to a ban on other forms of traditionally protected speech. That view essentially prohibits restricting any speech no matter how valueless and no matter how injurious, and ignores the harm that such speech can – and does – cause.
Ultimately, free speech is an essential component of ensuring liberty and an informed democracy. Accordingly, unpopular, offensive, and distasteful speech must be welcome in a society that values diversity. But that is not a “license for … vicious verbal assault[s]” upon citizens that serves no purpose other than to degrade and demean people, and that causes substantial and often irreparable harm, including suicide.
 562 U.S. 443 (2011).
 U.S. Const., Amend. I.
 403 U.S. 15 (1971).
 491 U.S. 397 (1989).
 485 U.S. 46 (1987).
 137 S. Ct. 1744 (2016).
 562 U.S. 443 (2011).
 413 U.S. 15 (1973).
 395 U.S. 444 (1969).
 475 U.S. 41 (1986).
 See Adam Lamparello, ‘God Hates Fags’ Is Not the Same as ‘Fuck the Draft’: Introducing the Non-Sexual Obscenity Doctrine, 84 UMKC L. Rev. 61 (2015).
 562 U.S. 443 (Alito, J. dissenting) (emphasis added).
 Id. (emphasis added).
 Id. (emphasis added) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).
 See, e.g., Jane E. Allen, Rutgers Suicide: Internet Humiliation Trauma for Teen (September 30, 2010), available at: Rutgers Suicide: Internet Humiliation Trauma for Teen - ABC News (go.com).
 See, e.g., Mudasir Kamal and William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation (September 2016), available at: Revenge Pornography: Mental Health Implications and Related Legislation | Journal of the American Academy of Psychiatry and the Law (jaapl.org).
 See, e.g., Claypool Law Firm, Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (Dec. 18, 2017), available at: Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (claypoollawfirm.com).
February 27, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Saturday, February 19, 2022
Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge
In my LRW II classes last week, we reviewed persuasive Statement of Fact headings. I repeated my usual points on making the headings a bit catchy, but completely honest and logical. I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”).
In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.
Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,
https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge. As Garner reminded readers he: “occasionally interview[s] long-dead authors. Another name for it is active reading. Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.” In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court. Id. I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.
Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.” The Justice’s hypothetical reply is especially helpful for all appellate writers to remember: “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.” Id. As I told my students, a careful summary where parties agree can sometimes be helpful. Garner notes Justice Rutledge might say:
This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief. It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains. It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.
In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.” Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect. Id. Garner explained Justice Rutledge’s point on dealing with adverse facts this way: “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.” Id.
Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility. Id. Garner concludes his article asking for the Justice’s concluding thoughts. The Justice’s hypothetical reply is: “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.” One great way to add interest is to give your court clear, concise, and interesting facts.
I wish you happy drafting.
Sunday, January 23, 2022
Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.
But disparate outcomes among groups do not always reflect discrimination.
In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.
I. Disparity does not equal discrimination.
Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.
A. In many areas, disparity cannot be attributed to discrimination.
Disparities exist everywhere. For example:
The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.
The majority of legal writing professors are female.
The overwhelming majority of individuals convicted of violent crimes are men.
The majority of nurses are female.
The majority of professional football and basketball players are African-American.
The majority of professional baseball players are white.
The majority of methamphetamine users are white.
Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes. And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.
Put simply, identifying a disparity in a particular context proves nothing.
B. Disparities exist within groups based on cultural and other factors unrelated to discrimination.
The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group. What did social scientists identify as the reason for the disparity?
The quality of a person’s family upbringing.
Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:
[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.
Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:
How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”
Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.” Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”
In other words, not all – or even most – disparities are reducible to racism
C. When objective and non-discriminatory measures are used, disparate outcomes still result.
In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname. From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry. In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry. And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.
Does this mean that the NFL is discriminating against African American kickers? Of course not.
D. Disparities result because individuals self-select into different professions.
Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices. As Sowell explains:
There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.
To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”
Simply put, in many instances, disparate outcomes have nothing to do with discrimination.
II. The solution – use empirical data to exclude non-discriminatory causes of disparity.
As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.
As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.
 See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube
 See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles
 See Registered Nurse Demographics and Statistics (2022), available at: Registered Nurse Demographics and Statistics : Number Of Registered Nurses In The US (zippia.com)
 See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista
 See Professional Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics : Number Of Professional Baseball Players In The US (zippia.com)
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See id.
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See id.
 See id.
 See id.
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
Saturday, January 15, 2022
The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.
1. Don’t write.
The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.
Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.
2. Don’t let anyone read your first draft – or your final draft.
Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.
Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”
Yeah, whatever. Go away.
Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”
Yes, and your comments about my writing have just been deleted.
The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”
None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.
The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.
3. “Write drunk. Edit sober.”
To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.
If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.
4. Invent words.
Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.
What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.
5. Sometimes, throw IRAC/CRAC in the proverbial garbage.
In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.
Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.
Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.
Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…
Blah, blah, blah.
Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:
The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.
Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.
6. If it sounds good to the ear, write it and keep it.
When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:
Don’t use passive voice.
Don’t end sentences with a preposition.
Don’t mix verb tenses.
This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:
Use common sense.
Trust your judgment.
Rely on your instincts.
After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it. Be sure, however, that what you hear – and write – is grammatically correct.
7. Get a little nasty sometimes.
People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.
To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.
Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.
In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit. Consider the following:
Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.
Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.
After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.
8. Don’t edit too much.
Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”
These people are so annoying and truly don’t see the forest for the trees.
The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.
Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.
9. Write like a human being.
Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?
Be humorous (in appropriate circumstances).
In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”
Huh? Have you ever heard anyone use the word axiomatic during a conversation?
Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.
People don’t talk like that. You shouldn’t write like that.
Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:
Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.
The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.” The questioner’s response? “Great answer.”
Indeed, it was.
10. Ask questions.
Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage. In so doing, Roberts wrote as follows:
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.
So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.
 Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.
 Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).
 Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)
 Id. at 1.
 576 U.S. 644 (2015).
 Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)
I hope you are all enjoying 2022 so far. As you look for ways to refresh your writing in the new year, consider using E-Prime. Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’” See Christopher Wren, E-Prime Briefly: A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.
While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing. For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words. Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.
As Mark Cohen explained: “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.” Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing, https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020). Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.” Id.
Wren also provides great examples of E-Prime removing passive voice and shortening clauses. Wren, A Lawyer Writes in E-Prime, at 52. Here are two of Wren’s examples:
Before: Doe’s assertion that he was prejudiced by the joint trial is without merit.
After E-Prime: Doe’s assertion that the joint trial prejudiced him lacks merit.
Before: Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.
After E-Prime: Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.
As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice. Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives. Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts. Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.
In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause Englishlanguage communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.” Id. When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical. But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “EPrime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.” Id.
Thus, I urge you to give E-Prime a try. With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.
Sunday, January 9, 2022
I finished my first book of the year this weekend—The Law Student’s Guide to Doing Well and Being Well by Professor Shailini Jandial George. Although it is geared toward law students, as I will explain below, it is a book that most lawyers would greatly benefit from reading. And, with the new year upon us, what better time to focus on wellness?
Let’s face it, we are part of a stressed-out profession. The result—high levels of depression and substance abuse. For most of us, the pandemic has exacerbated our stress. I have certainly seen it in my own life, especially surrounding attempts to balance caretaking duties with work. Appellate practitioners are fortunate in that they often have more day-to-day flexibility in their schedules as opposed to litigators. My husband, for example, recently moved from a litigation position to an appellate position in part because his court schedule offered little flexibility, which added to our family’s stress. And while there are other books out there on lawyer stress and wellbeing, I really appreciate, and learned much from, Professor George’s recent book.
Professor George’s book tackles the wellbeing crisis among lawyers from an interesting perspective. She focuses primarily on the topic of cognitive well-being, or maximizing the potential of one’s brain, which relates to the “do well” part of the book’s title. As she explains, there is a “deep connection between brain health and wellness,” so by “doing well” we can “be well.”
Early in the book, Professor George sets up the importance of the brain as a tool of the lawyer’s trade—a image she returns to throughout the book. Just like a musician would care for her instrument, lawyers should care for their brains. Stress, distraction, poor exercise and diet, and a lack of sleep do a number on our brain. I certainly see that in my own life. Professor George devotes a chapter to each of these topics and offers self-reflection exercises and practical tips to improve our brain health.
So much of what she wrote resonated deeply with me, but let me share just a few points that especially stood out. First, I learned a lot in the chapter on focus and distractions. Did you know that “[t]he more we us the part of our brain activated by distractions, the more we weaken the part of our brain needed for deep focus”? Or that a group of researchers compared the cognitive ability of multi-taskers and persons who “had just smoked marijuana,” and the marijuana smokers “came out on top.” Yikes. I have certainly seen my ability to focus reduced in recent years, and I do think that the constant distractions of 24/7 connectivity and social media play a role. Professor George offers some excellent tips for improving focus and reducing distractions. One that I might put into practice more this new year is turning off distracting notifications on my computer and putting away my phone for a period of time each week to allow me to focus on some big projects both at work and at home, which with the pandemic are increasingly blended.
Second, I was struck by the connection between diet and exercise and brain health. I know that exercise and diet are good for physical health, but I never really thought about how diet and exercise impact my ability to think. Professor George offers specific foods to eat (and avoid) to improve brain health. She also describes how different types of exercise impact cognitive ability and offers different types of exercise to improve different aspects problems you might be facing. Perhaps the most personally striking statement she made was to encourage her readers to find their own “internal motivation” for exercise, noting those who exercise for the “internal benefits” tend to enjoy it more and stick with it better than those who do it for a special event. Now that I have hit a certain (undisclosed) age, the thought of keeping my mind and body in great shape to keep up with my active children is very important.
The last point that I want to share is the general applicability of Professor George’s book. While she did write it for law students, nearly all of it can be directly applied to lawyers, even the self-reflection exercises. It isn’t hard to take an exercise that has you look at a successful study session and apply it instead to a successful brief writing session or trial prep. Most of the self-reflection exercises are even more general than that (for example, the reflections on sleep, exercise, and diet are very general, with only one easily deletable reference to law school). And before you try to argue that you don’t have time for a self-care book, Professor George’s book is an easy, short read. Her style is delightful and funny, and the book weighs in at only 134 pages (excluding notes and the index).
Not only can the book be directly applied to practicing lawyers, but I believe that we have as much, if not more, to gain from it as law students. I did a good job practicing wellness as a law student. I find it harder now, with both work and family demands, to keep it up wellness practices.
I am usually not one for New Year’s resolutions or a word to apply to one’s year, but reading Professor George’s book has made me think about adopting “self-care” as my 2022 theme. She ends her book with a final self-reflection that asks readers to come up with concrete things from the book that they can implement this day, this week, and this month. I still need to sit down and do that exercise (there is no quiet in my house on the weekends), but it is certainly something that I need to do. I know that focusing on self-care and “doing well” will make me a better professor, mom, and spouse.
I would encourage any reader who wants to “do well” and “be well” to pick up this book. In full disclosure, I received a complimentary copy to review, but the book is well worth its low sticker price. I would encourage law firms and law schools to make this book available to employees and students. It would also make an excellent text for a law school class or CLE on wellness.
 I have two young children ages 3.5 and 1.5.
 When he applied for his new job late last year he calculated the last day he had been working but not in court. It was in June…of 2020.
 The number of times I have “lost” my cell phone since my 3.5 year old was born is pretty astounding.
 I do know the importance of sleep on my ability to think, but that is largely because my kids are still really young so good sleep is rare in our house.
 Good thing too. It seems like all the special events are canceled these days…
 Especially on the diet part—feeding four people, one of whom would live solely on dino nuggets (not on the approved food list) and yogurt, is a challenge.
Sunday, November 28, 2021
This post was written by Daria Brown, a graduating senior at Georgia College and State University and the President of Georgia College's Mock Trial team. Daria will begin her first year of law school in the fall of 2022.
Addicts don’t belong in prison. And drug courts are not a proper solution.
In recent years, drug courts have proliferated in many states as an alternative to incarceration for low-level drug offenders. Ostensibly predicated on a rehabilitative rather than punitive paradigm, drug courts strive to provide low-level drug offenders with treatment in lieu of incarceration.
But upon closer examination, drug courts aren’t the solution. In fact, they are part of the problem because they retain a punitive approach to treating drug offenders and perpetuate precisely the type of moral blameworthiness—and lack of empathy—that often plagues those who struggle with addiction, and makes it difficult, if not impossible, for such individuals to lead fully recovered lives.
This article proposes a new approach that advocates for a truly rehabilitative, rather than retributive model, and that attempts to replace condemnation with compassion.
By way of background, as a response to the overwhelming number of arrests for minor drug law violations in the 1980s and 1990s, drug courts were created to serve as an alternative correctional -- and rehabilitative -- approach for defendants charged with low-level drug crimes, such as possession of marijuana. And these courts have experienced some degree of success, as many individuals -- who would have otherwise been incarcerated -- have recovered from their addictions and proceeded to live productive lives.
The truth, however, is that these stories are the exception, not the rule. And the inconvenient truth is that drug courts, while well-intended, are fundamentally flawed for several reasons. Most prominent among them is that drug court programs misunderstand the nature of addiction, unjustifiably retain punitive elements that reflect stigmatization of addicted offenders and fail to provide the type of treatment protocols that are essential to maximizing positive outcomes for offenders. Those flaws are detailed below, followed by principled solutions that will enhance the efficacy and fairness with which we treat individuals who struggle with addiction.
I. The Problems
A. The individuals responsible for implementing and overseeing treatment of addicted offenders have a limited understanding of addiction.
Prosecutors and judges are given complete discretion over who is referred to drug court and which treatment is most appropriate for each individual. For example, prosecutors are given the power to “cherry-pick” participants who they believe will be successful in the program, and often intentionally exclude precisely those defendants who need the most help, namely, those with a history of addiction. As such, offenders who are in dire need of treatment often receive no treatment at all and are instead relegated to a prison where they routinely decompensate.
This should come as no surprise. After all, why should prosecutors and judges, who have no education and experience in addiction or psychology, have the power to determine which defendants receive treatments, and the authority to set the parameters of that treatment? It is equivalent to permitting a cardiologist to determine whether a patient suffers from bipolar disorder. If drug courts are serious about providing efficacious and meaningful treatment to those offenders who need it, they should not entrust decision-making authority with individuals who know nothing of the problem that drug courts are designed to treat.
B. Drug courts strive to rehabilitate yet retain a punitive model that decreases the likelihood of successful treatment.
You can’t scare people into recovery. It’s like a parent telling a child that, if they continue to listen to a certain type of music, they will be grounded for six months. That might work in the short term. It utterly fails in the long term. Drug courts suffer from this problem. Put differently, if you are committing to a rehabilitative model, you have to be truly committed to that model.
Indeed, drug courts have adopted two intrinsically contradictory models which undermine their efficacy: the disease model (rehabilitative) and the rational actor model (punitive). The disease model recognizes that drug use for addicted individuals is compulsory and not morally blameworthy. Conversely, the rational actor model states that any given decision-maker is a rational person who is able to evaluate positive and negative outcomes to make the most rational decision—and thus would attach moral culpability to drug addiction.
Unfortunately, drug court programs embrace these contradictory models and, in so doing, impede treatment efficacy and, ultimately, an offender’s prospects for a full recovery. To be sure, in a drug court treatment program, an individual is given treatment based on the underlying assumption that they have an addiction, but if they fail to comply with all treatment protocols, they are threatened with punishment, including incarceration.
These models cannot function together because the rational actor model misunderstands the nature of addiction and the road to a successful recovery. Indeed, recovery is a difficult path, where setbacks and relapses are often common. Failing to understand the turbulent road to recovery forces addicts to attempt recovery under the shadow of shame and condemnation, and when a setback occurs, treatment is withdrawn and punishment, including incarceration, implemented. This is a prescription for failure.
C. For the participants who could benefit most from treatment, failure is far too common.
For individuals who struggle with addiction—and are selected to participate in a drug court program—in most cases, they must plead guilty to their charges as a condition of their referral. And if an individual fails to complete the program, a person may not amend their guilty plea. Therefore, these people lose both the opportunity to plead guilty to a lesser offense and receive support services essential to their recovery. Furthermore, in some instances, a person struggling with addiction may face a longer sentence than they otherwise would have if they hadn’t been referred to drug court in the first instance when considering the days or weeks of incarceration they endured during the program as punishment for relapse or other minor infractions plus their full sentence decided by the judge upon removal from the program.
This troubling dynamic begs the question: what is the purpose of drug courts? Do they reflect a principled commitment to treating the issues underlying addiction? Do they focus on maximizing positive outcomes for offenders, many of whom are from marginalized communities—which requires tolerance of and treatment for setbacks, including relapses? Or do they reflect a half-hearted attempt to provide treatment that, upon the first hint of non-compliance, leads to incarceration and cessation of all treatment efforts? In many instances, it is the latter. And that makes drug courts rehabilitative in name only and restorative in theory but not in fact.
These are only a few of the major issues involved in drug court programs, but they demonstrate a fundamental need for a more suitable solution to address addiction, remove stigmatization, and provide meaningful rehabilitation. Below are three policy recommendations that would improve the efficacy and fairness and drug treatment in the criminal justice system.
II. The Solutions
A. Trained psychologists and psychiatrists -- not prosecutors and judges -- should evaluate all criminal defendants who struggle with drug addiction.
Many drug users struggle with serious and life-threatening addictions. And many of these people also suffer from mental health issues, such as depression or bipolar disorder, potentially using illegal drugs to self-medicate. For this and other reasons, trained psychologists and psychiatrists should evaluate and recommend the proper course of treatment for all defendants charged with drug crimes. These experts, unlike prosecutors and judges, understand addiction and mental illness, and thus can recommend and implement individualized treatment that will have the highest likelihood of success. In many instances, such treatment will likely include administering medication and providing cognitive behavioral therapy, as both psychiatric and psychological treatment increase substantially the likelihood of recovery.
Furthermore, rather than being forced to plead guilty to a charged offense, the person should be granted a continuance for their case for a period of time deemed appropriate for treatment based on a psychiatrist’s and psychologist’s recommendations. Additionally, if a person is financially disadvantaged and unable to afford the medication prescribed and treatment recommended, the government should supply aid necessary to cover these costs. After all, if the criminal justice system is truly committed to rehabilitation, then it should put its money where its mouth is—figuratively and literally.
Now, if an offender struggling with addiction or mental illness is charged with a violent crime, the offender’s psychiatrist and psychologist should include in their assessment what effect, if any, the underlying disorders may have on the defendant’s culpability. Furthermore, if a defendant pleads or is adjudged guilty, the court should consider these assessments as mitigating factors at the sentencing stage. This will result in truly individualized sentences that reflect moral blameworthiness more accurately and result in less severe sentences more frequently.
Finally, this approach would prevent prosecutors—who have no expertise in understanding or treating addiction or mental illness—from cherry-picking which defendants are worthy of treatment, from imposing arbitrary barriers to accessing such treatment, and judges from implementing treatment programs that have minimal, if any, likelihood of success.
B. The stigma and discrimination directed to individuals struggling with addiction and/or mental illness must end now.
Individuals who struggle with addiction or mental illness should never be stigmatized or marginalized. These people are forced to carry around society’s label of “otherness,” and that “otherness” leads to being denied admission to universities, rejected from employers, and ostracized by community members. This is wrong. Giving people a second chance reflects empathy and understanding, which is often lacking from even the most passionate advocates of social justice.
Indeed, when jobs and education opportunities are gate-kept from individuals simply because they have a past, it perpetuates the cycle of recidivism and relapse that is so common in cases of substance abuse. Most importantly, it dehumanizes people who have fought valiantly to overcome addiction and adversity and disregards the inherent human dignity that all humans possess. Simply stated, we need to recognize that all humans are flawed and that, ultimately, we all share similar struggles. Treating people with compassion is essential to achieving justice in a meaningful and transformative manner.
C. Implement community-based solutions that place individuals in the best position to achieve permanent recovery.
One of the major issues with drug court programs and incarceration is the lack of support upon reentry into society, which often prevents individuals from achieving the level of financial and social stability necessary to avoid reoffending.
Community-based solutions can help to facilitate an individual’s transition into society and provide the support necessary to prevent relapse or recidivism. And these solutions can encompass a wide range of possibilities. For example, volunteers in the community may be granted tax breaks if they agree to mentor these individuals and help them adjust to their new life and assist their mentees in signing up for or getting involved in other community-based solutions.
Other community-based solutions may include granting the recently recovered person a lifetime membership to a community center such as the YMCA and contracting with local businesses to offer employment to individuals after successful completion of treatment. These businesses could receive tax breaks for their cooperation and continued dedication to affording opportunities to individuals who suffered from—and overcame—addiction or mental illness. Such an approach can help individuals to achieve stability and autonomy and to take responsibility for their lives and happiness. It also reflects the belief that giving people an opportunity to start anew is a chance worth taking.
Ultimately, current drug court programs, while well-intentioned, are not well-designed. The problem is that addiction and mental illness are largely misunderstood, often mistreated, and unnecessarily maligned. Dispensing with these stereotypes, which result in marginalization and discrimination, is the predicate to implementing meaningful and principled treatment programs. Most importantly, recognizing that people deserve a second chance, that morality has no place in addiction discourse, and that punishment is frequently devoid of purpose, is the first step to enacting reforms that respect human dignity and that reflect empathy for those that the criminal justice system has unjustly relegated to inconvenient enigmas.
 See Drug Policy Alliance, Drug Courts Are Not The Answer: Toward A Health-Centered Approach to Drug Use, (March 2011), available at: https://drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf
Sunday, November 14, 2021
In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court. The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.
1. The Court’s decisions are perceived as political and outcome-driven.
In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy. In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right, the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.” It was within these penumbras that the Court discovered a right to privacy.
In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.
To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy. Regardless of one’s view on abortion, the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.
Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text did not support recognizing a right to abortion. Undeterred by the text, however, the Court supported its decision by emphasizing that “[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.
The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.
Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.
2. The Court gets involved in disputes that the democratic process should resolve.
The Constitution says nothing about abortion.
It says nothing about same-sex marriage.
It says nothing about whether money constitutes speech.
It says nothing about whether imposing the death penalty for child rape is cruel and unusual.
Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.
3. The Court fails to defer to the democratic process when the Constitution is ambiguous.
The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.
For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause. Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.
Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause. The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.
Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”
4. The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.
Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.
For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act. In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers. Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.
Fair enough. That approach is reasonable – if applied consistently.
Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.
Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.
Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges.  In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. 
Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members. Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.
The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.
 See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 381 U.S. 479 (1965).
 Id. (emphasis added) (brackets added).
 410 U.S. 113 (1973).
 505 U.S. 833 (1992).
 See id.
 554 U.S. 407 (2008).
 524 U.S. 417 (1998).
 567 U.S. 519 (2012).
 See id.
 See id.
 570 U.S. 529 (2013).
 591 U.S. , 2020 WL 3492640 (2020).
 579 U.S. 582 (2016).
 138 S. Ct. 2448 (2018).
November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Saturday, August 7, 2021
In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”
Well, guess what?
Sometimes, neither the law nor the facts support your argument.
In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.
So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:
You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.
After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.
As the attorney representing the congressman, you obviously have an uphill battle.
Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.
The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.
So, what can you do to make this ‘bad’ argument as persuasive as possible?
1. Create a nuanced argument that renders governing precedent less controlling
When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.
Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.
Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?
Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.
This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.
Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.
2. Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument
When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.
Below are a few examples relating to the above hypothetical:
So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?
So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?
So, the court’s interpretation of ‘reckless’ means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?
These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.
3. Forget the straw man – attack and undermine your opponent’s best argument
Never, never, never avoid the elephant in the room. And never make a straw man argument.
Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.
4. Use quantitative and qualitative data to maximize the persuasive value of your argument
Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:
In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.
Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.
5. If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say
When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.
Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:
So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?
Uh oh. I wouldn’t want to be that attorney.
So, what should you do?
Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:
I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.
Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.
6. Argue with emotion and confidence
Perception matters. Confidence and passion matter. Especially when you are the underdog.
When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious. When you exhibit confidence and passion (and make a well-structured argument), you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.
7. Appeal to the court’s sense of fairness and justice
Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.
Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.
Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.
Saturday, July 24, 2021
The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.
1. Make your sentences concise
Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:
The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.
This sentence is far too wordy. Instead of the above statement, simply say:
The Second Amendment protects an individual right to bear arms.
Likewise, consider this example:
The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.
Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:
The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.
That sentence is thirteen words, and it says the same thing.
Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.
2. Focus on coherence and flow
Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages. With this in mind, consider the following statement:
The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.
This paragraph is utter nonsense. It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.
3. Keep the reader’s attention
When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:
The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.
This paragraph is worse than the Friday the 13th movies. Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.
4. Eliminate filler words
Sentences should include only necessary and purposeful words. As such, eliminate words like “just,” “very,” and “really.” Consider the following example:
My settlement offer should really be considered by your client.
Your client should consider my settlement offer.
The second example eliminates the filler words. It gets to the point quickly and directly.
5. Don’t repeat words
If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:
The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.
Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.
6. Don’t suggest unintended meanings or biases
Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases. Consider the following example:
The defendant was mentally retarded and should be held incompetent to stand trial.
Yeah, that’s not good. Instead, say:
The defendant was intellectually disabled and should be held incompetent to stand trial.
Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.
7. Avoid words that convey uncertainty or equivocation
Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:
The court’s decision seems to be based on reasoning that is inconsistent with precedent.
Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:
The court’s decision is based on reasoning that is inconsistent with precedent.
The latter sentence is direct and declarative, and thus more persuasive.
8. Eliminate cliches
When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:
My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”
That sentence is terrible. Instead, say:
My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.
This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.
9. Know what your words mean
Don’t use words that you misunderstand or don’t understand. Consider this example:
The law’s affects will suppress citizens’ First Amendment rights.
Don’t make such a foolish mistake. Instead, say:
The law’s effects will suppress citizens’ First Amendment rights.
And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:
The invidious weather caused the plane crash.
The inclement weather caused the plane crash.
The first sentence would make the reader question the writer’s credibility – for good reason.
10. Lose the adverbs
Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:
The party was extremely loud.
The party was deafening.
The defendant was extraordinarily tired.
The defendant was exhausted.
The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”
11. Lose the adjectives
Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:
The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.
Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:
The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.
The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.
12. Think differently about active versus passive voice
The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.
Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?
The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.
The alleged defamatory statements, which were made by the defendant, are true.
The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.
12. Good judgment leads to good writing
Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.
Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.
Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Sunday, May 16, 2021
On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.
Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.
1. The jury deprived Chauvin of a fair trial
Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.
During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:
Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout. You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”
At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.
Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.
The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:
“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.
Mitchell answered “no” to both questions.
At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.
2. Failure to sequester the jury
Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached. Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:
Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury.
And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:
There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.
Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.
3. Failure to Change Venue
Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.
That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.
4. Insufficiency of evidence on one or more of the charges
The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.
Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.
But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.
And for the reasons stated, the conviction should be overturned.
Process matters – regardless of Chauvin’s egregious and deplorable conduct.
 Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation
 See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post
 Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY
 See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics
 Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)
Sunday, May 9, 2021
In the past year, COVID-19 has transformed how legal education – and legal writing – is delivered to students. Online instruction replaced in-person instruction, professors and students were forced to adapt quickly to an alternative learning format, and grading policies were adjusted to account for the unique hardships that online learning engendered for many law students. And all of this occurred while administrators, faculty, and students were living in fear of a virus that has killed more than 570,000 citizens in the United States.
Notwithstanding, the challenges involved in transitioning to online learning – along with the challenges of transitioning to in-person instruction post-COVID – need not compromise the transformative and practical instruction that legal writing courses can effectuate, regardless of whether through online or in-person instruction. Indeed, several universal principles or designs can ensure that students learn real-world writing and critical thinking skills in online and in-person contexts. Those principles are below and can be useful to both new and experienced legal writing faculty to ensure that legal writing courses provide students with the competencies to succeed in law school and the legal profession.
1. Connect legal writing to the real world – a memo and appellate brief are not sufficient.
The best legal writing courses and curriculums connect pedagogy and assignments to the real world. To do so, legal writing professors should require students to draft and re-draft the most common litigation documents in their courses, including complaints, answers, motions to dismiss and motions for summary judgment, trial briefs, and appellate briefs. And these assignments should be given in the order they would be drafted in practice.
To accomplish this objective, legal writing professors should, either individually or collaboratively, draft a detailed hypothetical fact pattern that includes substantive issues from all first-year courses and requires students to “litigate” a hypothetical case from the complaint to appellate brief in the first year of law school (or the first three semesters). The assignments could be administered as follows:
Legal research assignment (one or more issues in the hypothetical)
Predictive memorandum (closed research)
Re-write of the predictive memorandum with one or more issues added (open research)
Answer (which allows students to self-critique their complaint consider a legal issue from an opposing perspective)
Motion to Dismiss
Motion for Summary Judgment (with previously prepared discovery provided)
Re-write of the Motion for Summary Judgment
Re-write of Appellate Brief
Appellate court opinion (students assume the role of judge and draft an opinion affirming or overturning the lower court)
This format will allow students to gain experience in drafting and re-drafting the most common litigation documents in the order that they would be drafted in practice, thus enabling students to understand the ‘big picture’ of how law is practiced, and gain experience in applying predictive and persuasive writing techniques to various real-world documents and contexts. Perhaps most importantly, this approach enables professors to focus on persuasive advocacy from day one, in which students will be required to, among other things, formulate a theme and theory of the case, distinguish relevant from irrelevant facts, and synthesize the law to present a compelling legal argument. Of course, this would not eliminate instruction on predictive writing; it would simply incorporate the predictive writing component into the litigation and sequence it appropriately.
2. Prioritize integration over separation – legal writing assignments should be connected to doctrinal courses
When drafting a multi-issue hypothetical that allows students the opportunity to litigate a hypothetical case from the complaint to the appellate brief, law professors should include issues from the students’ required first-year courses. Doing so will enable students to apply the legal doctrines that they are learning in their required courses to real-world contexts and help students to understand how these doctrines operate in law practice. Furthermore, by applying foundational legal doctrines (e.g., personal jurisdiction, negligence) to a real-world fact pattern, students will simultaneously improve their writing and critical thinking skills and learn how to effectively analyze legal issues, which will maximize their performance on end-of semester-exams and enhance their ability to think like lawyers.
For example, a multi-issue fact pattern in a first-year legal writing curriculum can include issues such as negligence, personal jurisdiction, assault and battery, proximate causation, and supplemental jurisdiction. By connecting the assignments in legal writing courses to the topics students are learning in doctrinal courses, the legal writing curriculum will be an essential and integrated part of the curriculum.
3. Require students to read excellent writing
Before students write, they should read excellent legal writing texts and documents. After all, students need to understand what good writing is before they can become excellent legal writers. For example, professors should require students to read Plain English for Lawyers by Richard Wydick and Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which is a perfect example of outstanding storytelling and persuasive advocacy.
4. Make the Rule of Three a cornerstone of legal writing instruction.
The Rule of Three is an effective technique to maximize the persuasive impact of an argument. This technique instructs students, when making legal arguments, to identify three reasons that support a desired outcome or remedy. Social science research demonstrates that the Rule of Three effectively simplifies and organizes an argument for the audience, and appeals to the audience because people respond positively and attentively to arguments that are delivered in sets of three.
5. Teach students how to re-write and edit, not just write
Excellent writing requires excellent editing.
Indeed, to write effectively, students must understand and embrace the writing process, which consists of the: (1) first draft; (2) rewriting phase; and (3) revision phase. Thus, legal writing professors should instruct students on macro and micro level editing, including issues such as organization, conciseness, word choice, grammar, and style. Put simply, if students do not understand how to re-write and edit effectively, they will not write persuasively.
Perhaps the best way to train students in re-writing and editing is to provide them with a legal brief written by a practicing attorney and require them, individually or in groups, to re-write and edit the document, and explain why their edits made the document flow better and present the arguments more persuasively.
6. Include time-pressured assignments
As every lawyer knows, legal documents must often be drafted under strict time constraints. Thus, law students should gain experience in drafting real-world documents under the pressures that attorneys face daily. For example, legal writing instructors can require students to draft a rule section explaining the law of defamation and give students, either individually or in groups, twenty-four hours to complete the assignment. Doing so enables students to continue developing their legal writing skills while simultaneously coping with the pressures that they will encounter in law practice.
7. Include simulations and require students to argue opposing viewpoints
When using a multi-issue hypothetical that requires students to litigate a case from the complaint to the appellate brief, legal writing faculty should include simulations, such as a client interview, presentation of the law to a partner, settlement negotiations, and trial and appellate court oral arguments. The point is to train students to communicate effectively and interpersonally, which essential to excellent counseling and advocacy.
8. Truly ‘Flip the Classroom’: Turn the students into teachers
Students should be challenged in the legal writing classroom and curriculum – and treated as peers. One way to do this is to truly flip the classroom by requiring students, as part of an assigned group, to teach particular classes that discuss topics such as IRAC/CRAC, case synthesis, and binding versus persuasive legal authority. Doing so will ensure that the ‘teaching students’ master the relevant material and gain experience in public speaking and communication. Also, this exercise can empower students and create an environment in which they are views as peers in a collaborative learning process.
9. Stay away from politics
No one cares about your political views. More specifically, no student wants to enroll in a course where they will be subject to ideological indoctrination. Students learn best – and are motivated to learn – in a classroom where they feel welcomed and accepted. As such, classrooms should be places in which all views – liberal, conservative, libertarian, and whatever else – are welcomed and respected. Thus, to promote diversity of viewpoint and experience, law professors should never make statements or design assignments that strive to advance a particular point of view or agenda. Doing so is antithetical to creating a diverse and inclusive classroom environment.
10. Be available – always
Great professors care deeply about their students’ success and demonstrate that commitment by being accessible and available to every student – even in the evenings and on weekends. Indeed, getting to know each student individually – and establishing productive relationships with each student – inspires trust and motivates them to work hard and succeed. For these reasons, go the extra mile and be available to students whenever they need advice or assistance. It shows that you care, which inspires students to excellent lawyers – and citizens.
Ultimately, the best legal writing professors realize that their mission is not about them – it is about improving the skills and lives of their students. These tips will help in achieving those objectives and make the legal writing curriculum a place where students learn to become great lawyers and great people.
 See Adam Lamparello & Megan Boyd, Legal Writing for the Real World (LexisNexis, 2014).
 See Adam Lamparello & Charles E. MacLean, The Guide to Experiential Legal Writing (Carolina Academic Press, 2015).
 See, e.g., Kathleen Elliot Vinson & Sabrina DeFabritis, Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice, 122 West Va. L. Rev. 107 (2019).
Sunday, April 18, 2021
George Floyd’s death, which was captured on video, is difficult to watch and, quite frankly, disturbing. In that video, former Minneapolis police officer Derek Chauvin kneeled on Floyd’s neck for over nine minutes, including several minutes after which Floyd had lost consciousness. Floyd’s death sparked protests (and, in some areas, riots) throughout the country for many months and, over the last three weeks, Chauvin has stood trial for Floyd’s murder in Minneapolis. Both the prosecution and defense are expected to deliver closing arguments tomorrow and the jury may begin deliberating as soon as Tuesday.
When deliberations begin, the jury will consider the following three charges against Chauvin: (1) second-degree unintentional murder (felony murder); (2) second-degree manslaughter; and (3) third-degree murder. Second-degree unintentional murder, which carries a prison sentence of up to forty years, applies to a defendant who “causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second-degree with force or violence or a drive-by shooting.” Under Minnesota law, the underlying felony must pose a “special danger to human life,” thus requiring at least some risk of death. Second-degree manslaughter applies where an individual’s death results from “the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Third-degree murder applies to individuals who “without intent to effect the death of any person, cause the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life.”
Determining which, if any, charge will result in a conviction is difficult to predict. During the trial, the prosecution, led by Minnesota Attorney General Keith Ellison, presented thirty-eight witnesses. This included testimony from Minneapolis Police Chief Medaria Arradondo, who stated that Chauvin’s decision to kneel on Floyd’s neck was not an approved police technique and that Chauvin should have ceased kneeling on Floyd’s neck when he longer presented a threat to the officers (the evidence shows that Chauvin continued restraining Floyd for approximately three minutes after Floyd was unconscious). Additionally, the prosecution presented numerous medical experts who testified that hypoxia, which is a low level of oxygen that leads to asphyxia, caused Floyd’s death, and that the asphyxia resulted from Chauvin kneeling on Floyd’s neck for over nine minutes.
The defense, led by attorney Eric Nelson, argued that Floyd’s death was caused by a combination of factors unrelated to Chauvin’s actions, such as drug use and heart disease. For example, the toxicology report revealed that Floyd had ingested a potentially lethal amount of Fentanyl, and that Floyd had methamphetamine and THC in his system. Additionally, Floyd had atherosclerosis and hypertensive heart disease. The defense’s expert, Dr. David Fowler, concluded that these conditions, coupled with the drugs Floyd ingested and his inhalation of carbon monoxide from the squad car, collectively caused his death. The defense also presented a use-of-force witness who testified that, under the circumstances, Chauvin did not use excessive force.
It is difficult to predict whether the jury will convict Chauvin and, if so, what charge will most likely result in a conviction. The prosecution’s witnesses, particularly Minneapolis Police Chief Medaria Arradondo and Dr. Martin Tobin, were quite compelling. Defense attorney Eric Nelson, however, effectively cross-examined several witnesses and focused extensively on drugs and heart disease as the causes of death.
Arguably, the causation issue will most likely consume much of the jury’s deliberations and will require a determination of whether Chauvin’s actions – or drugs and heart disease – caused Floyd’s death. Indeed, given the amount of Fentanyl in Floyd’s system and his underlying cardiovascular conditions, it may be difficult for jurors to conclude beyond a reasonable doubt that Chauvin caused Floyd’s death. Importantly, however, the prosecution need only show that Chauvin’s actions were a contributing cause of Floyd’s death, which renders a conviction more likely.
Ultimately, considering the arguments, testimony, and evidence, it seems that, if the jury does convict Chauvin, it will likely be for second-degree manslaughter. A conviction on the third-degree murder charge is implausible because Chauvin’s actions, although reprehensible, did not threaten to harm multiple persons or “others” as the statute requires. Also, a conviction on the second-degree unintentional murder charge seems less likely (although possible) because the felony murder statute has rarely, if ever, been applied to law enforcement officers in the context of restraining a suspect. This is particularly true concerning a suspect who is resisting arrest because, at least for a portion of the time, the restraint used is arguably justified. In addition, given that Chauvin was unaware of the level of Fentanyl in Floyd’s system or of his preexisting heart conditions, it may be difficult to demonstrate that Chauvin intended to inflict bodily harm on Floyd or that he knew his actions were likely to result in such harm. However, a conviction on second-degree manslaughter is arguably justified because Chauvin was culpably negligent by kneeling on Floyd’s neck for minutes after Floyd was unconscious and thus no longer presented a threat to the officers. Indeed, Chauvin’s failure to stop kneeling on Floyd’s neck despite his lack of consciousness cannot be justified.
If the jury returns an acquittal, it will almost certainly result from a belief that, although Chauvin’s actions were appalling and entirely unnecessary, they did not cause Floyd’s death. This is certainly a possibility and will depend on the jury’s assessment of the experts’ credibility and of the relevant medical reports.
Also, if the jury returns a guilty verdict, defense attorney Eric Nelson (or whomever Chauvin retains) will almost certainly appeal. Specifically, Nelson will likely argue, among other things, that Judge Peter Cahill’s refusal to change the venue for the trial deprived Chauvin of the right to a fair trial. And if the jury returns a guilty verdict on the third-degree murder charge, it may be overturned on appeal because Chauvin’s actions, however deplorable, did not threaten harm to multiple people.
Regardless, George Floyd’s death was a tragedy. The video of his death is appalling. Whatever the jury’s verdict, this incident will hopefully lead to reforms in how police are trained in the use of force and de-escalation techniques, such that an incident like this never occurs again.
 Minn. Stat. 609.19(1).
 Minn. Stat. 609.205(1).
 Minn. Stat. 609.195.