Monday, December 9, 2019
Does generational theory have any relevance in Appellate Advocacy? Yes, particularly in its teaching. Dr. Corey Seemiller, an expert in generational theory, recently gave her insights on Gen Z, the cohort born between 1996 and 2010, and how they approach advocacy at the Reimagining Advocacy Conference at Stetson University College of Law. The oldest members of Gen Z are now 24, so many current law students are in this group. Dr. Seemiller's keynote kicked off a weekend-long discussion of how to harness the strengths of Gen Z and bolster some of the weaknesses. Whether you work at a law school with these students right now or are a practicing attorney who will soon have Gen Z colleagues, it’s helpful to learn about some of their strengths and challenges as a group. Dr. Seemiller’s presentation gave the conferenceattendees a shared vocabulary. As a caveat, anytime one deals with generational theory, one deals in broad categories, but individuals and personalities vary. Still, I see applications for how I teach students to work as a team, read materials, approach an audience, and prepare for an oral argument.
So what characterizes Gen Z? Among other things, they are curious, honest, kind, and fair. They are diverse. They have experienced a significant amount of vicarious trauma and do not remember a world before Columbine and 9/11. They are motivated by relationships and by what they believe in. They are constantly connected and often addicted to technology; according to Dr. Seemiller they have an average of 8.7 social media accounts. Gen Z students say that they prefer face-to-face communication, but smart phones have been a part of their world since childhood or birth. They may need coaching in how to have live conversations.
Now that Gen Z has officially arrived at law school, and as we try to train them in appellate advocacy, there is a gap between the advocacy methods they have used and appellate advocacy. Over the last few years they may have engaged in twitter wars, used hashtag activism, and witnessed cancel culture. Appellate advocacy in some ways is the polar opposite of hashtag activism and slogans. Professor Mary Beth Beasley identified mastery as the key to appellate advocacy. Mastery takes focus. When we overburden our short term memories with a constant stream of information (like from a smartphone), we diminish our long term memory capacity. Both long term memory and the ability to build connections between a mass of materials are necessary to effectively advocate at the appellate level. Of course, these skills are important to all of us, but Gen Z has never known a time with out smart phones constantly pulling their attention. Many of these students have not learned to read deeply and sustain prolonged focus. We need to find ways to help them pursue and recognized mastery.
We can also try to harness Gen Zs strengths. Hashtag activism requires the ability to boil things down and be concise, which are helpful skills when thinking about theme. These students care deeply about the causes that are important to them. While they may not be patient in the skills development process, once they see the value in a project, they will buy in.
Gen Z is not alone in being constantly connected to technology; most of us are. So as we prepare to teach the next generation of students how to advocate, we need to consider the way that the audience is changing, too, even though there are not yet Gen Z appellate judges. Ultimately, the boiled down, concise persuasion styles Gen Z gravitates to may be helpful to any audience with a shortened attention span. Fortunately, it’s also good writing. But we need to teach students to achieve mastery, think deeply, and make meaningful connections before they start condensing.
Saturday, December 7, 2019
In recent years, social scientists have demonstrated that all individuals likely harbor implicit, or unconscious, biases. Additionally, based on empirical research, some scholars contend that laws or policies that disparately impact marginalized groups result, at least in part, from implicit biases. Other studies suggest that certain behaviors, such as statements reflecting subtle prejudice against marginalized groups (e.g., microaggressions) result from implicit biases. As a result, many organizations in the public and private sector have instituted training programs that focus on implicit bias, its allegedly deleterious effects, and the methods by which to alleviate such bias in, for example, the hiring and promotion of employees or admission of applicants to universities throughout the United States. And researchers at Harvard University have developed the Implicit Association Test (IAT), which purportedly measures the degree to which an individual harbors implicit biases in a variety of contexts, including those affecting traditionally marginalized groups.
Certainly, striving to eradicate biases that produce discriminatory or disparate impacts on individuals or groups is a moral and legal imperative; discrimination in any form is intolerable and contravenes the guarantee that citizens of all backgrounds enjoy liberty, equality, and due process of law.
But does implicit bias actually – and directly – correlate with biased behavior?
Recent research in the social sciences suggests that the answer to this question remains elusive and that the effect of implicit bias on biased behavior may not be as significant as previously believed.
To begin with, there is a general consensus among scholars that implicit bias exists. Put simply, all individuals, regardless of background, arguably harbor implicit biases or prejudices. Importantly, however, the distinction between implicit and explicit bias is difficult to ascertain and operationalize. In other words, how can researchers claim with any degree of confidence that discriminatory behaviors or policies that, for example, disparately impact marginalized groups are the product of implicit rather than explicit bias? Currently, there exists no reliable and objective criteria to make this distinction.
Furthermore, if, as some researchers contend, implicit bias resides outside of consciousness, it would seem difficult, if not impossible, to remedy the effects of such bias. After all, if we cannot be aware of these biases, how can we regulate their manifestation in particular contexts? Also, how can researchers reliably claim that implicit bias predicts biased behavior if not a single person, including researchers, can be aware of its presence and influence? This is not to say, of course, that individuals are unable to develop an increased awareness of the explicit biases that they harbor and take steps to minimize the effect of such biases on their behaviors. It is to say, though, that the relationship between implicit bias and biased behavior remains uncertain, and that there is no method by which to quantify the effect of implicit bias on biased behavior given the presence of other relevant factors (e.g., explicit bias).
Moreover, recent research suggests that the correlation between implicit bias and biased behavior is dubious:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior.
These findings, the researchers state, “produce a challenge for this area of research.”
Additionally, the IAT, which is a popular assessment of implicit bias, has faced significant criticism concerning its methodology and practical value. For example, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs. Also, scores on the IAT are arguably context-dependent and thus produce different results for individuals who take the test multiple times. Consequently, although results on the IAT are “not as malleable as mood,” they are “not as reliable as a personality trait.” Likewise, it is difficult to assess whether the IAT is measuring unconscious attitudes of mere associations that result from environmental influences.
In fact, researchers have conceded that the IAT is flawed, stating that, although the IAT “can predict things in the aggregate … it cannot predict behavior at the level of an individual.” In fact, one of the IAT’s creators acknowledged that the IAT is only effective “for predicting individual behavior in the aggregate, and the correlations are small.” Perhaps most surprisingly, one researcher explained that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.” As a social psychologist explains:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
Of course, this does not mean that implicit bias bears no relationship to biased behavior. It simply means that more research is necessary to determine whether, and to what extent, implicit bias predicts biased behavior. After all, given that eradicating all forms of discrimination is a moral imperative, researchers and policymakers should ensure that society is using the most effective measures to do so. This includes assessing whether implicit bias is a credible predictor of biased behavior.
 Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807 (emphasis added).
 Azar, B. (2008). IAT: Fad or Fabulous? American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.
 German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. (March 7, 2017), available at: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test-racism; see also Heather MacDonald, The False Science of Implicit Bias, (Oct. 9, 2017), available at: https://www.wsj.com/articles/the-false-science-of-implicit-bias-1507590908.
 Id. (emphasis added).
 Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea (Dec. 2, 2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
Wednesday, November 27, 2019
Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts. When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances. As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.” In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable. Acting in this manner seems fair to everyone and keeps people we deal with content. When we act differently, we call it a surprise, which can be a good thing or a bad thing.
Courts use prior decisions or precedents in much the same way, as models for later decisions. Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction. Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not. Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors. Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges.
Courts around the world consider precedent in varying degrees. We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.
Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues. Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable. In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given. One decision alone is said to make law that must be followed in subsequent cases.
On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law. A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight. These decisions do not bind the court to a particular interpretation of the law, nor do they make law. In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.
The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.
Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct. For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis. The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions. Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts. Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake. The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:
Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right. Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.
American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied. United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant. He explained, “[S]tare decisis is not an end in itself. It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”
Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law. In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision. Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law. The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions. These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past. Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.
 The author has published articles on the value of precedent and a book chapter that addresses the topic. This post draws directly from those publications. See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).
. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).
http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts). See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).
. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”). But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998). The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53. See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”).
. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).
 La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).
 I have referred to this behavior as “systemic respect for jurisprudence.” Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.
Monday, November 11, 2019
Today is Veterans Day, and a couple of times this weekend I was reminded of the sacrificial service by veterans to our country. First, I spent the weekend in beautiful Gulfport, Florida learning from and connecting with practitioners, judges, and professors at the Reimagining Advocacy Conference hosted by Stetson University. The Keynote Speaker Friday night was Stacey-Rae Simcox, Professor of Law and Director of Stetson University College of Law’s Veterans Law Institute and Veterans Advocacy Clinic. Professor Simcox, a veteran herself, spoke movingly about her work with veterans in Stetson’s Veterans Advocacy Clinic and the need for attorneys to represent veterans in their benefit appeals. Second, I stayed in the Madeira Beach Courtyard Marriott, and Saturday morning as the sun rose, the VFW next door piped patriotic music into the parking lot. As I sat on the balcony listening to the Marines’ Hymn, I decided to dedicate today’s posts to veterans, the legal advocacy challenges they face, and the ways that attorneys can help.
Professor Simcox’s remarks focused on the intersection of Veterans Law and Advocacy. In keeping with the conference theme of Reimagining Advocacy, Professor Simcox stated that the future of advocacy for veterans was collaboration. Professor Simcox helped establish a medical-legal partnership between Stetson University College of Law and the University of South Florida’s Morsani College of Medicine. Partnerships like these help to treat the whole person.
Additionally, Professor Simcox is president and one of the founding members of the National Law School Veterans Clinic Consortium. This consortium allows clinics to share resources and referrals to support each other and offer broader service to veterans around the nation. According to a press release: “NLSVCC members work together on advocacy efforts, including joint amicus briefs to encourage systemic change benefitting veterans; host national conferences to train others how to provide pro bono legal services to veterans; and share best practices among members and community partners such as the VA [and] the ABA.”
As to the specifics of representing veterans in appeals, Professor Simcox pointed out that veterans are only allowed to hire an attorney once their benefit application is denied. Denial of benefit appeals beyond the VA have only been allowed for about 30 years, so it’s still a relatively new practice area. There is a steep learning curve for practitioners looking to represent veterans before the VA. See this ABA Article on Attorneys Representing Veterans. But there is absolutely a need. According to Professor Simcox, 22% of veterans are still pro se in their appeals to the VA.
If you would like to get more involved in helping veterans with their legal needs, the ABA Veterans Legal Service Initiative has compiled resources and volunteer opportunities here. The ABA also has resources for veterans and their families and caregivers on that same page. You can also donate to support the National Law School Veterans Clinic Consortium here. A list of all of the law schools with Veterans Clinics can be found here. If your alma mater has a Veterans Law Clinic, why not designate a gift to that clinic the next time you are contacted for a donation? For those who teach in law schools with veterans clinics, encourage your students to take those clinics.
Finally on this Veterans Day, I want to thank the many veterans I know and respect for their service, including my many veteran students and former students. Also, Professor Ann Ching, one of my former colleagues at Pepperdine and who now teaches at Arizona State University, expanded my awareness of this area of law with her work as pro bono counsel for veterans before the Department of Veterans Affairs and the Court of Appeals for Veterans Claims. As a former JAG officer, Professor Ching serves as an incredible mentor to veteran students in addition to her advocacy for veterans.
While only some of us can take on a veteran appeal, we all can honor veterans’ service and find ways to make sure that our country fulfills the promises we have made to them.
Wednesday, November 6, 2019
Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way. When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.” As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.” They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.
Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill. For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly. Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly. Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively. As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels. Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level. If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games.
Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing. Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop. A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough. Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion. They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold. They are new to legal discourse; they do not know how bold or creative they can be. They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation. They have not yet reached mastery.
Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing. Novices even worry that their “formulaic” writing may be a problem. Legal writers are taught to use formulas, such as IRAC and CREAC, to ensure that they provide the information necessary for a solid legal argument and analysis. These formulas are used because they track a logical way to present information needed for legal arguments. Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case. As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments. They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.
A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information. Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy. This may involve deliberately altering the formulas employed. For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule. On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue. Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused. This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue. It also risks that the court might have wanted a fuller exposition of the law before the argument. As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.
Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing. Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling. Novice writers tend to underestimate the value and necessity of revising and editing. The best writers know that rarely if ever is the first draft the best draft. Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court.
So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive. Expect to revise and edit their writing to show them exactly how to do this effectively. Model the behavior you want to see in these novices. And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.
 See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.
 Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.
 Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).
 IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion. CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.
 See Beazley, supra note 5.
Saturday, November 2, 2019
Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research. Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools. Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar. As new lawyers, especially if they start in small or solo practices, they will need access to free tools.
Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more. Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance. See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).
There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery. See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH: Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com. For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019).
In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org. According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.” Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe. The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online.
Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel. See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/. A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned.
For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as: “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.” Next-Gen. Lgl. Res. Platforms, ACB. In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:
(1) “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.” Judicata has free and subscription-based services.
(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”
(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”
I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms. I hope these sources are helpful to you as well. Happy research, everyone!
Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Wednesday, October 2, 2019
October is a great month, perhaps the greatest month of all. In October, the oppressive heat of the summer sun begins to wane – this year being an exception, of course. With the waning oppression, we have moments of crisp, cool, clear days where the sky is a deep blue, and every breath we draw has a freshness that cannot compare. The stifling chaos that we saw in August, as we tried to cram in just a few more days of summer fun, and prepare to move our offspring back to college, or go shopping for new school supplies, persisted into September. Do you remember September? That blur of back-to-school, with new routines and bedtime fights, and syllabuses that won’t write themselves, and fresh first year law students eager to grasp the subtle nuances of CREAC. Oh yes, I stepped out of September with barely a glance back and walked, head held high, into October.
But why? Why is it that I greet October with such reverence? October is the beginning of holiday season. Yes, I know that many do not consider Halloween to be a true holiday, but it is the start of a season of festivities that will march us month by month, holiday by holiday, until spring. But even the holidays, and the cooler weather, and the promise of sweaters and bonfires, and apples and pumpkins, are not the reason why October is the most romantic of months. October marks the opening of two things that make me giddy: First, the Supreme Court session year opens with all of its promise and anticipation and, second, October marks the opening of the moot court season with equal amounts of promise and anticipation. I recognize that for many practitioners, news people, and scholars, nothing can compare to the October session of the Supreme Court. And for me, I will be watching, waiting, and pontificating, for sure. As I went to compile a short list, I went from, "oh this case," and "ah that case," to "how can I choose?" Just check out the line-up for yourself: https://www.scotusblog.com/case-files/terms/ot2019/
My muse, however, is moot court, where my students and I get to dabble in mock cases based on the issues that the Court will be tackling. In fact, last year, my students argued many of the issues that will be decided this term. October marks the beginning (if you don’t count all the briefs that were due in the last few weeks).
Just like those of us in the real world have been making adjustments in late August and early September, my students have been re-adjusting to a new school year. In addition, our 2Ls and 3Ls have been busy writing briefs and practicing their oral advocacy skills. And, now, beginning this coming weekend, and over the many weekends to come, they get to see how they have been doing. Certainly, I have been giving the praise and critiques. We’ve been honing their skills, and sharpening their wits. But at this point, my praise is beginning to sound parental. They need to see how their work pans out in the “real” world, or as real as it gets before you are barred (or have your 3rd year practice certificate). Strangers, who haven’t learned to love each of them for who they are, will be assessing their strengths and weaknesses, and the best part is my students will know almost instantaneously how they fared.
I love this for my students. I want the judges to be respectfully honest, and I want my students to see that some things are truly up to the subjective nature of the individual, while other things are almost universally true. When we know what is universally true, we can begin to learn how to adjust and account for the subjective expectations of others. I love that my students have the opportunity to take the feedback they receive and then incorporate that into the next competition, and I treasure the unique opportunity that I have to see them grow and mature. In less than a year, my 3Ls will leave this moot court world behind, but they will never forget. Moot court students are the marching band of law school. They will forever think fondly of their experiences, and will tell cautionary tales that arise from their negative experiences. They will return to the school and share their real world experience with my next crop of students, and when they get picked to argue in one circuit or the other, they will call me. And it all starts in October.
Monday, September 23, 2019
Yes, the title of this blog is designed to raise eyebrows. But no, I am not arguing for judicial activism as defined by the right or the left. Rather, I am arguing for a court that takes an active role in legal education. We need judges--state and federal--who visit law school classes, speak at campus events, teach classes and seminars, take interns, and otherwise engage in legal education in their state.
Since moving to Arizona, I have been astounded at how involved that state and federal judges are at the state law schools. For example, each academic year the state Supreme Court and the local appellate court hold arguments at the school where I teach. The local appellate court also welcomes students in our brief-writing course to its courtroom each semester to give their final arguments, with all of the judges and many of the clerks and staff attorneys serving as judges for the arguments.
Current and retired appellate judges and justices teach courses at the law school. They also attend campus events, give lectures at orientation or to student groups, judge competitions, and attend social events.
While I see the state judges on campus the most, the federal bench is also active. The federal judges are also good about judging competitions and speaking at or attending events. They also take a lot of student interns, and I always hear from students about what a great opportunity it was to intern at federal court.
The advantages of an active, engaged bench are profound.
First, judges make great mentors and role models for the students. Students are often more likely to listen to advice from judges, especially on topics like professionalism and civility, which are extremely important skills for students to learn.
Second, and related, judges reinforce what is said in the classroom. I can count on one hand the number of times that I have heard a judge give advice on brief-writing, advocacy, or professionalism that I disagree with. Generally, we are all on the same page, and, to the extent that we want to produce excellent future lawyers, we are all on the same team.
Third, our students are likely to give and do their best if a real judge is involved in an event or competition. While some students still care about impressing professors, nearly all of them care about impressing judges. They rightly see judges as a possible future employer and/or someone that they should try to impress.
Finally, having judges involved gives faculty a break. I can judge arguments, competitions, speak at events, and socialize, but it is so nice to have local judges who are willing to step into that role. Sometimes, after saying the same things over and over, we faculty members just need a break. Thankfully, we have enough judges in Arizona who lend a helping hand that they can get a break too!
I want to thank all of the state and federal judges who devote so much time to making law school a better experience for students. Your hard work does have an impact!
Thursday, August 22, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar is inspired by the start of a new law school year. I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing. I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.
In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.” By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.
The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there. In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work. While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.
A Commenting Ethos Is A Perspective, Not A Technique
Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback. Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.” These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing. (You can learn about some of these techniques in the monograph and at the end of this article.) But, this post is not about technique. Instead, it is about the perspective one can take when giving feedback. That is, how should one think about the feedback task? How should a lawyer giving feedback approach the work? What attitudes should she adopt?
One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos. Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.
Aristotle considered ethos as having three dimensions: competence, character, and goodwill. In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback. A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future. Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.
Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member. In other words, ethos is a social act that takes place in a particular cultural context. Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation. The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback. I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.
A Positive Commenting Ethos: Expert Coach, Not Rival Writer
Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?
An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback. The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product. Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.” This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.
The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong. This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations. The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.
The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.” Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge. The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance. An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.
An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.” Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away. Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work. The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.
Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging. So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.
Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task. But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals. If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Tuesday, August 20, 2019
There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.
But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.
First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.
Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.
Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.
And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.
Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.
Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Monday, August 19, 2019
Today is the first day of school at many law schools around the country, including the one where I teach. Those schools that haven’t started are likely to begin in the next few weeks. This time of year has me thinking about new beginnings and the rhythm of the academic year. While culturally there is a lot of talk of New Year’s resolutions, those of us on an academic calendar start our new year in August or September, with all the plans and hopes that accompany a fresh start--new students, new courses, new approaches to material.
As summer has wound down, I’ve been reading First, Evan Thomas’s fascinating biography of Sandra Day O’Connor. In the same way that schools operate on their calendar, the Supreme Court operates on the rhythm of its Terms, which begin every year on the first Monday in October. The Court recesses at the end of June, then works on the petitions and other business to prepare for the next October Term.
Justice O’Connor was sworn in just a couple of weeks before the Term began in 1981, and it seems as that first Monday in October approached, she was anticipating what the new Term would hold. For example, Thomas reports that in 1986 upon the appointment of Justice Scalia that “O’Connor had welcomed his high intelligence and verve. . . Scalia, she believed, would be a tonic. ‘Nino Scalia will have a dramatic impact here,’ she wrote in her journal.”
As I start a new school year this August, Justice O’Connor’s example is on my mind. Her strength, will, and energy enabled her to be a trail-blazer, as highlighted in First. And she continued to start each October Term strongly for 25 years, even when dealing with challenges including breast cancer, diagnosed shortly before the 1988 October Term.
For those of you not on an academic or appellate term, do you have a way of creating fresh starts for yourself? Do you still look to the calendar to demarcate your own “terms”?
Any advice you’d like to share for starting strong, whether in academics or practice?
I like to make sure my office and inbox is organized at the start of a new semester, as piles tend to grow during the hectic pace of classes.
I hope everyone who is starting a new term soon has a great start!
Monday, August 12, 2019
In March, Professor Teri McMurtry-Chubb blogged about her forthcoming article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, which will be published in the Washburn Law Journal. The article can now be accessed here on SSRN.
As Prof. McMurtry-Chubb explained in her post, her article explores "how bias shapes lawyer analytical and reasoning processes," and it is the product of "a 6-year empirical research study [that she] conducted involving student motion and appellate briefs generated from case files involving social justice issues." In her article, Prof. McMurtry-Chubb goes into more detail on the different problems that she used in the study--ranging from legacy admits to law school to Indian Child Welfare Act cases. Her article, her study, and the results are simply fascinating and raise important questions for law schools. As she explains in the article,
This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity—equity and inclusion less so—as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring.
. . . .
. . . The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote
better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.
In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers’ inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice.
Thank you Prof. McMurtry-Chubb for your important contribution to how we approach legal education. I am certainly going to be mindful of these issues as I teach this semester.
Monday, August 5, 2019
Over the summer, I have been going through moot court brief section by section, giving moot court drafting and scoring advice. In this final installment I will discuss the overall editing of the brief. There is nothing that sours a reader faster than finding multiple editing errors. As I’ve mentioned before, typos in the Questions Presented do not give me much hope of finding an excellent brief as I turn past the first section. Over the years, students have been most frustrated when they realize that their brief did not score well because they violated the word count or lost points for some other avoidable editing issue.
Often, moot court briefs are scored separately for content and form, with a set of scorers specifically tasked with going through and looking for editing and citation issues. I always suggest doing separate editing passes to make sure that your brief is as close to perfect as possible before you turn it in.
These two blog posts by Joe Regalia go into more depth on editing word choice and using technology to uncover your writing blind spots and are worthwhile reads:
Scoring-wise, style often plays a significant role in total points. In the sample score sheet I reviewed, the Overall Presentation was worth 15 of 100 points.
Is the writing style clear, concise, and persuasive?
Does the brief effectively present the case for the client?
Does the brief look polished and professional?
(15 points possible) _________________
In another competition with separate technical scoring, every error, whether grammatical or citation, resulted in a point subtracted. That adds up quickly when every point matters. Often brief scores tend to cluster, and even a couple of stray errors can take a brief out of the running for a high score.
Here are my top tips for editing a moot court brief:
* Set an internal deadline for the team that is 48 hours before the actual deadline to leave time for additional read-throughs. Have accountability with a coach or director that the internal deadline is met.
* Every team member should read the brief in hard copy at least once. The more eyes on the brief, the better the chances of catching everything.
* Use editing technology, but don’t mindlessly rely on it. Grammarly is what I typically recommend.
* Try to edit after a good night’s rest and when it’s been a few days since you looked at the brief to give yourself better perspective and clarity on your writing.
* Double check all of the little things. Have you complied with all of the competition rules? Are the cites perfect? Are the tables organized and cited properly? Does the cover look polished and professional?
Ensuring that your brief is well-edited will not guarantee that you have the winning brief for a competition, but a poorly-edited brief will not even be in the running.
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Monday, June 24, 2019
Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.
One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.
Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.
For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:
SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
TOP TIPS FOR THE SUMMARY OF ARGUMENT
1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.
Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:
Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.
The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”
These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.
2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.
3. Limit citations. It will bog down the summary.
4. Don’t just restate the point headings. It’s lazy and just taking up space.
5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.
Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.
Monday, June 17, 2019
While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship. A state or federal appellate clerkship is an excellent stepping stone to an appellate career. But how do you secure an appellate clerkship? Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships.
(1) Get good grades: Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important. If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class. Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.
(2) Be on a journal: For many judges it is important for applicants to have journal experience. Much of the work that appellate law clerks do mirrors journal work. For some judges, high level moot court experience could replace journal experience.
(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships. So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor. And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.
(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse. You can see what the judges do, and hopefully end the experience with a great recommendation. Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society. Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.
(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town. Find those judges, apply to them, and mention the connection in your cover letter.
(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship. That is no longer the case. Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship. If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship. I also know of a student who went from the state supreme court to the federal district court. The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.
(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive. I have met many a state court judge who is better equipped to do this than some federal judges. So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.
(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience. Or, try working for a judge your first summer out of law school. That experience should help you know a little bit what a clerkship would be like.
Good luck to all of the students applying for clerkships right now!
Monday, May 6, 2019
Don't worry, this post isn't about what color suit and shirt you should wear during an appellate argument (I mean, we all know the answer is charcoal or blue with a white shirt). This post is about whether you should wear any sort of affiliation pin on that (charcoal or blue) suit. Should you indicate your support for the Marine Corps, your alma mater, breast cancer research, the Federalist Society, Black Lives Matter, or any other number of groups by wearing some sort of lapel pin?
As I recently learned, the answer is no. A few weeks ago, I was listening to judges talk to students about appellate advocacy. One of the students was wearing a lapel pin for one of the branches of the military. A judge commented that the student shouldn't wear the pin at oral argument, and the judge's colleague agreed. I was surprised by this advice, as I had never heard it before from a judge. I asked around on a moot court listserv and got surprised responses as well. But, as I reflected on the advice, it made sense. It especially made sense for attorneys who are appearing before a judge for the first time or who are unknown in the jurisdiction.
Imagine a scenario where an appellate attorney argues a case before a panel of judges, two of whom have been active in an organization like the Federalist Society or the American Constitution Society. The attorney dons a lapel pin from that organization. As he stands up to argue, he is sending a signal to the judges that he is one of them--that he is part of their society and ascribes to the same ideals as the organization that he is representing on his suit collar. It boosts his ethos with the court.
Some trial court judges have specific rules preventing attorneys from wearing "political pins" in court. One listserv member shared a story about an attorney in Ohio who was held in contempt of court for wearing a Black Lives Matter pin into such a courtroom in 2016. Although the attorney appealed the decision, the case was settled and she stated that she "now understands 'that a courtroom is a nonpublic forum over which [the judge] had the authority to dictate decorum.'"
Without digging into the constitutional issues, the no pins policy seems to be a prudent one. The logos, ethos, and pathos of an attorney's argument should carry the day, rather than the "I'm part of your secret society" message that some lapel pins might attempt to convey. I do think, however, that some pins, especially school affiliation or military ones, become less of an issue with attorneys who practice regularly before the same judges. My husband was a prosecutor for many years in Virginia. He practiced primarily in juvenile court before the same three judges. After a few years of practice, I am sure that the judges didn't care if my husband had a lapel pin reflecting his military service--they knew that he was reliable, dependable, and prepared based on the years of seeing him in court.
For my students who are still building their ethos, I will now be telling them to (1) button their jacket when they stand to address the court, and (2) be cognizant of wearing a lapel pin that might be seen as an attempt to improperly influence a judge.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.
Saturday, March 23, 2019
You never get a second chance to make a first impression.
They say that the journey matters more than the destination--but I say it's neither. It's the beginning that matters most.
The beginning is everything. The beginning of your briefs will color everything else that comes after. Same goes for the beginning of your sections, your paragraphs--and even your sentences.
Readers can't help but be swayed by the beginnings. It's science--indeed, one of the most studied phenomena. The moment that your reader picks up your document they start making judgments about you. Some are explicit and some are implicit. And these initial ideas--these judgments about things like your credibility and competency--are nearly impossible to shake. The psychology literature is full of studies showing that even when faced with proof that we were wrong, we humans have a real problem changing our first impressions.
Some of the reason is that once we make initial judgments, we are constantly looking for evidence that we're right about them--also known as confirmation bias. So if your reader spots a poorly written sentence at the outset, their mind can't help but look for more bad writing as they go. Also important is that those first sentences will spark emotions in your readers (either favorable or not). And fascinating studies suggest that sundry other biases (like our hatred of uncertainty, our reliance on imperfect information, and the effects of priming) all conspire to make first impressions count more than they should. Indeed, in multiple studies, readers have distorted facts so that they would conform to their prior impressions.
Mountains of research leave no doubt: We can exponentially increase the persuasiveness of our writing by making the right first impressions on our readers. So how do we do it?
Books could be written about crafting the right lead-ins for your briefs, sections, paragraphs, and sentences. I'm in the middle of some research on this topic right now, and I've read at least 100 studies on everything from affective theory to the uncertainty theorem to choice theory--all of which have something to say about why beginnings are so important.
For now, I thought I'd share some examples of lawyers and judges who are masters of getting off on the right foot. As you read through, I think you'll agree that several best practices stand out:
1. Write with incredible pith at the outset. Top legal writers put their best material in the start.
2. On the flipside: bad writing is nowhere to be seen in the beginnings. That goes for typos, odd constructions, or simply poor word choice or dense sentences. So no long acronyms, strings of cites or party names, or anything else that will bog things down. Leave that stuff for after you've made your impression.
3. Counteract any biases or assumptions your reader has going into things. This helps put them in a better frame of mind when you get to the meat of your arguments.
4. Figure out how you can incorporate key themes, facts, rule statements--or whatever else is most helpful to getting your reader to agree with your ultimate pitch. Often the best way to do this is to pluck memorable phrases or words from the body.
5. Consider how you can put your reader in the right emotional state. If you want them outraged when they get to the details, prod them. If you want them thoughtful, subtly lead them there.
6. Direct dialogue can be a helpful tool to connect with your reader on a deeper level, too. As can all the other rhetorical and style tools that get your readers to listen carefully to the important stuff.
Let's start with a Judge on the 11th Circuit. Below is the first paragraph of her opinion. Note how she takes your assumptions about what a "felony battery" is and blasts them out of the gate. Note also the fantastic style: a well-placed colon, followed by two short conjunctions--and a well-balanced trio of sentences with a medium, short, and longer one to finish. Finally, the judge incorporates her theme: this is a term of art that should be defined by legal analysis and precedent, not gut reactions to what seems "violent."
No question about it: a crime called “felony battery” sure sounds like a violent crime. But sometimes intuition can be wrong. So we evaluate whether a crime qualifies as a crime of violence under the federal definition of that term of art by conducting legal analysis and applying Supreme Court precedent.
Here's an opening sentence from Judge Wood on the Seventh Circuit in the Brendan Dassey case. This is easily the best sentence of her dissent. The theme is blaring: this confession was a script provided by police. And the style is excellent. It's also a great example of a long sentence done right. The phrases in between the punctuation are all well balanced and clear, with little room to get lost:
Psychological coercion, questions to which the police furnished the answers, and ghoulish games of "20 Questions," in which Brendan Dassey guessed over and over again before he landed on the "correct" story (i.e., the one the police wanted), led to the "confession" that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.
Moving to the paragraph level in that same case, Judge Wood continues paying close attention to her first sentences. She persuasively frames what comes after by juxtaposing what the court of appeals should have done with what they did do:
If the Wisconsin Court of Appeals had done what it should have, it could not reasonably have concluded that Dassey's confession was either voluntary or reliable (both of which are required for the use of a confession to be consistent with due process).
And another great first sentence, this time a not-so-subtle effort to color how readers will review a set of facts:
Just as importantly, a closer examination of the supposedly reliable facts on which the majority relies shows that they are no such thing.
And finally, Judge Wood leads into a final section with a sentence that leverages the persuasive power of the judges that agreed with her position, as well as a reference to the particular rule of law that supports her view:
As the district court and the panel majority recognized, we have before us just such an extreme malfunction.
Here's an opening salvo in another federal appellate dissent. Again, so much of the persuasive theme is packed into two sentences. Even the key language that forms the crux of the disagreement. The reader could stop there and get the point. Another great move, not necessarily about first sentences--the author gives the majority's argument a name, the "capacity test." Naming things is a powerful tool--either to frame an opposing argument persuasively or to give your a reader a memorable slogan for your own pitch:
The Majority derives its capacity test from a single sentence in Curtis Johnson: “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” To the Majority, the word “capable” in that sentence is dispositive, establishing a capacity-based definition of “physical force.”
Here's another great opening sentence, this time for a section, which offers specific, tactile examples of a concept:
Touching, tapping, pinching, and other actions involving limited, non-violent contact do not constitute “physical force.” But kicking, striking, punching, and other actions that are associated with violence do constitute “physical force.”
Take this opening line from Judge Davis in a concurrence. Lots of pith and poignant examples to drive his persuasive pitch home:
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals-Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few-who refused to accept quietly the injustices that were perpetuated against them.
This is another great opener from a dissent. Leading with the key persuasive fact--the absurdity of the numbers--puts readers in the right emotional state--skeptical.
In this case the defendant Van Buren County took property worth $206,000 to satisfy a $16,750 debt, and then refused to refund any of the difference. In some legal precincts that sort of behavior is called theft.
Judge Ed Carnes us a great purveyor of first sentences. Here's a stylistic intro that uses a rhetorical flourish: "verbal sleight of hand":
First, we think it unlikely that the Supreme Court would engage in the verbal sleight of hand that Vail-Bailon attributes to it.
Later in that same opinion, Judge Carnes sums up with a pair of emdashes the critical distinguishing facts in the critical authority:
The Court’s concern in Leocal—that the DUI crime at issue did not require the intentional use of any force at all, and that a defendant might be convicted of it after engaging in accidental or at most negligent conduct—is not a concern here.
Perhaps no one is a better first-sentencer than Justive Kagan. Look how simply the Justice sets up--what she thinks--is the key question. This move, anchoring the analysis at the start by controlling the governing question, heavily controls how readers will see the analysis after. Justice Kagan also explains the concept twice in different words, ensuring that her key point is driven home:
In this case, we consider a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees. We hold that such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith. A district court has broad discretion to calculate fee awards under that standard. But because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.
Justice Kagan keeps hitting at the beginnings. Here's an initial paragraph that sets the stage for a section by clearing away the chaff. You'll also see especially excellent style (hallmark-Kagan dialogue with the reader, parallelism in her questions, and great sentence-length balance):
It is an oddity of this case that both sides agree with just about everything said in the last six paragraphs about the pertinent law. Do legal fees awarded under a court’s inherent sanctioning authority have to be compensatory rather than punitive when civil litigation procedures are used? The Haegers and Goodyear alike say yes. Does that mean the fees awarded must be causally related to the sanctioned party’s misconduct? A joint yes on that too. More specifically, does the appropriate causal test limit the fees, a la Fox, to those that would not have been incurred but for the bad faith? No argument there either. And in an exceptional case, such as Chambers, could that test produce an award extending as far as all of the wronged party’s legal fees? Once again, agreement (if with differing degrees of enthusiasm). All the parties really argue about here is what that law means for this case.
Justice Kagan also knows how important it is to not bog down her first sentences with a lot of needless details. Like here, where she foregoes listing out all the defendants (but still includes the plaintiffs--all sympathetic family members who she keeps in for good reason):
Respondents Leroy, Donna, Barry, and Suzanne Haeger sued the Goodyear Tire & Rubber Company (among other defendants) after the family’s motorhome swerved off the road and flipped over.
First Circuit Judge Barron shows off his first-impression chops in the famous comma-case. Style and all the key details to put the reader in the right frame of mind:
For want of a comma, we have this case. It arises from a dispute between a Maine dairy company and its delivery drivers, and it concerns the scope of an exemption from Maine's overtime law. Specifically, if that exemption used a serial comma to mark off the last of the activities that it lists, then the exemption would clearly encompass an activity that the drivers perform. And, in that event, the drivers would plainly fall within the exemption and thus outside the overtime law's protection. But, as it happens, there is no serial comma to be found in the exemption's list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not.
In one of my favorite judicial opinions of late, Judge Thompson crafts an excellent first impression here by using some rhetorical moves and fresh transitions to deliver his key theme:
This is the third and final installment in a trilogy of published decisions in the direct appeal from a judgment of conviction entered against the defendant, Mark J. Zimny. In the opener, we remanded for the district court to conduct an investigation into a colorable allegation of juror misconduct. In the sequel, we addressed Zimny's request for bail pending appeal. Now, in the finale, we tackle Zimny's new claim that the district court erred in conducting its juror-misconduct investigation, as well as the two remaining issues upon which we reserved judgment in Zimny I.
Later, Judge Thompson uses a quote from the losing party to trounce their position:
But, contrary to Zimny's insistence, the purpose of the remand was not “to investigate the potential that the jurors' memories may have faded in the interim since trial.” Rather, the purpose of the remand was to determine whether the juror misconduct alleged in the additional-juror comment actually occurred.
And who could forget Judge Willett? This is one of my favorite first impressions of all time. After reading these opening paragraphs, it's hard not to be persuaded by whatever comes after. The style is impeccable (check out his choice verbs, for one thing). The framing is fantastic ("the text is king"). Multiple rhetorical flourishes convince his readers that he's worth listening (among other things, two sets of echo phrases). And he never takes it too far:
The lion’s share of modern appellate judging is reading legislative language and decoding what it means. On that score, our interpretive precedent favors bright lines and sharp corners. If a case can be decided according to the statute itself, it must be decided according to the statute itself. This is a bedrock principle.
Today’s case asks whether a notice provision in the Texas Premium Finance Act should be read as written, or instead whether the Court should adopt a “substantial compliance” approach that excuses slip-ups. We opt for the former. The Legislature has codified “substantial compliance” throughout Texas law—including in other Insurance Code notice provisions—forgiving less-than strict conformity with various statutory commands. But it did not do so here. We decline to engraft what lawmakers declined to enact.
And to round things out, Circuit Judge Wilson. He makes his first impression here by leading off with some direct dialogue and a hypothetical that gets his readers thinking:
If, while walking down the street, you tap a jogger on the shoulder and the tap startles him, causing him to trip, hit his head, and suffer a concussion, have you committed a violent act? Most would say no. But if you punch the jogger and the punch causes him to fall, hit his head, and suffer a concussion, you have undoubtedly committed a violent act. The difference between a non-violent and violent act, then, is the degree of force used. Both a tap and a punch are capable of causing great bodily harm, but a tap involves a limited degree of force while a npunch involves a substantial degree of force. Or, in the words of the Sentencing Guidelines, a punch involves “physical force.”
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.