Saturday, September 24, 2022
Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook. On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales. See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.
As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook. Additional states have their own gloss on key Bluebook rules or allow use of other manuals. Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court.
Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition. The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition. See generally Wendy S. Loquasto, Legal Citation: Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017).
Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook: https://indigobook.github.io/versions/indigobook-2.0.html. Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource. In sharing the second edition, Prof. Romig explained: “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.” The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes. Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.”
The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias. Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.” In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.
Saturday, September 10, 2022
Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.
1. Begin with a concise and powerful introduction.
Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.
After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.
2. Focus on what your adversary did not say.
Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.
3. Respond to some of your adversary’s arguments.
The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments. If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.
Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.
4. Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.
The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.
Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.
5. Write your reply brief with the expectation that it may be the first document that the judge reads in your case.
Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues. This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.
6. Maintain consistency with your initial brief.
Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.
7. Keep it short and re-enforce your theme.
Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.
8. End strong.
A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.
Saturday, August 27, 2022
The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.
1. They are highly intelligent and analytical.
The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.
2. They have the intangibles.
The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.
3. They are objective in assessing the merits of an appeal.
The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.
4. They know how to select issues for an appeal.
The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.
5. They are exceptional writers.
The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.
6. They are outstanding oral advocates.
The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.
7. They are extremely thorough and methodical.
The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.
8. They are confident.
The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.
9. They win.
As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.
Saturday, August 13, 2022
Incoming law students undoubtedly receive a substantial amount of advice regarding how to succeed in law school and the legal profession. Below is some honest advice based on experience and the realities of law practice.
1. Focus on developing your analytical thinking and writing skills.
Great lawyers are extremely intelligent. They have exceptional analytical thinking and persuasive writing skills. Thus, in law school, you should focus predominantly on developing these skills.
Regarding your analytical thinking skills, learn, for example, how to quickly extract the rule of law from a case, synthesize rules from different cases, distinguish unfavorable facts and legal authority, reason by analogy, address counterarguments effectively, present a logical argument, and explain why the policy implications of a ruling in your favor lead to the fairest and most just result.
Concerning your writing skills, focus on, among other things, writing concisely and in plain language, presenting a well-structured and logical argument, crafting a compelling narrative, and avoiding common mistakes, such as unnecessary repetition, overly long paragraphs, over-the-top language, and spelling and grammatical errors.
2. Your grades and class rank are incredibly important.
Your grades and class rank largely determine your prospects of obtaining membership on your school’s law review, being selected for a clerkship, and receiving job offers from prestigious law firms. Accordingly, from day one, focus on achieving the highest grade possible on your law school exams. In so doing, manage your time effectively, purchase the LEEWS legal essay exam writing system (www.leews.com), buy commercial outlines, such as Emanuel Law School outlines, take practice exams, use the IRAC/CRAC method in answering your exam questions, draft concise outlines, and learn the rules of law for each subject (not the facts of the cases you studied). Finally, read Getting to Maybe: How to Excel in Law School Exams.
Also, do not worry about performing well in class when the professor calls on you or about impressing your classmates with incisive questions or comments. This has no (or a very minimal) impact on your grade. Additionally, do not brief cases. Instead, learn the black-letter law and practice applying the law to hypothetical fact patterns. And learn how to draft an answer that flows logically, considers all relevant perspectives, and arrives at a reasonable conclusion.
Having said this, law schools provide wonderful opportunities to network, get involved in student organizations, and participate in other extracurricular activities. You should take advantage of these opportunities. But at the end of the day, grades and class ranking are what matter.
3. Your soft skills matter too.
To be a great lawyer, it is not enough to be extremely intelligent and a gifted writer. Although these skills are critical to your success, they are not sufficient to ensure a successful legal career.
Great lawyers have humility. They have strong interpersonal skills. They have emotional intelligence. They listen. They know how to work collaboratively and accept constructive criticism. They have common sense and exercise good judgment. They know how to manage their time and work efficiently. They know how to communicate effectively, think creatively, and adapt to new circumstances. And ideally, they are nice people; they are respectful and decent, not arrogant and narcissistic.
When you begin law school, you will undoubtedly confront students who are jerks and it will not take long to spot them. Typically, they think they are better than everyone else. They have the emotional maturity of a five-year-old. They gossip. They ask you what your LSAT score was and what grade you received on your exams. These losers should be avoided at all costs. And when they become lawyers (or, worse, married), their prospects for success will diminish (and the likelihood of divorce increase) because of their personality. Do not be like these people – or associate with them.
4. Lose your idealism and be realistic about what law practice entails.
When you begin your law school career, you will almost certainly be overwhelmed with platitudes about the law and a legal career. For example, you may hear statements to the effect of “the law is a noble calling and the vehicle by which you can achieve a more just and equal society,” or “lawyers are the agents of social change whose mission is to change the world and make a transformative difference in people’s lives.”
This sounds wonderful. But it is not the reality of what you will be doing as a lawyer. So, if your reason for going to law school is to “make a difference” and to “change the world,” you are going to be disappointed.
Most competent graduates will obtain jobs in private law firms that do litigation and transactional work. They will represent, for example, banks, corporations, developers, universities, and hospitals. They will work long hours under stressful conditions. They will spend most of their time drafting pleadings, motions, briefs, and discovery, taking depositions, dealing with difficult clients, and negotiating settlement offers. Of course, there is nothing wrong with this; lawyers provide a vital service to these clients and ensure that their legal rights are protected.
But disabuse yourself of the notion that you are going to change the world. And be honest with yourself about the realities of the world. If you think that most criminal defendants are innocent, you are delusional. If you think that the vast majority of law enforcement officers are racist and that most prosecutors spend their time convicting innocent people, you are mistaken. Not to mention, the majority of cases result in a plea bargain (or in civil cases, a settlement).
This is not to say that the practice of law is not a noble undertaking; indeed, lawyers have been responsible for protecting civil rights and liberties and achieving greater social and constitutional protections for citizens. It is to say, however, that this is not the common or everyday experience of most lawyers.
5. Be mindful of incurring too much debt.
As has been well-documented, many law students incur crushing, six-figure, non-dischargeable debt and, upon graduation, struggle to find a job to justify that debt. Do not be one of those people.
Now, this does not mean that incurring debt is always a bad thing. If, for example, you are accepted to Yale, Harvard, Stanford, or Chicago, and intent on being a litigator at a large law firm, the debt you incur will likely represent a small fraction of your career earnings. But if you are accepted at a fourth-tier law school where only some graduates obtain full-time jobs in law firms and make modest salaries – and you are not offered a substantial scholarship – you should probably not attend.
Ultimately, make sure to review a law school’s American Bar Association 509 report to assess, among other things, the employment outcomes of its graduates, the types of jobs that graduates obtain, and their average starting salary.
6. Take care of your physical and mental health.
It is no secret that many lawyers are unhappy and that the practice of law is stressful. This should not be surprising; how would you feel if you had to spend hours, days, and years reviewing documents, answering interrogatories, responding to nonsensical motions, and dealing with difficult clients (and unpleasant colleagues who somehow managed to find their way into the legal profession).
To be sure, one survey found that 45% of lawyers suffer from depression, and 36% struggle with substance abuse issues. And approximately 28% of lawyers get divorced, a number that is likely higher for those who work in large law firms.
Given these facts, when entering law school and the legal profession, be sure to prioritize your physical and mental health. Develop healthy coping skills to deal with stress and adversity. Ask for help when you need it. If you are depressed or struggling with anxiety, for example, seek professional help and try cognitive behavioral therapy. Experiment with meditation. Exercise. Focus on getting optimal nutrition, take supplements if needed (e.g., multivitamins, fish oil), and get sufficient sleep. Have a personal life and pursue interests and activities that are unrelated to the law. If you allow law practice to control your life, you will find yourself burned out, unhappy, and unfulfilled.
Perhaps most importantly, avoid the common pitfalls. Do not abuse alcohol or drugs to manage stress. And do not be a victim. Do not blame others – or circumstances – for your problems. Take ownership of your life – and your choices.
7. Be honest with yourself about what you want – and whether a legal career will make you happy.
As you proceed in your law school career, be honest with yourself. Are you passionate about becoming a lawyer? Do you understand fully the demands of law practice? Can you manage the stress, the long hours, and the difficult clients? Are you comfortable with drafting countless motions and briefs, and engaging in prolonged discovery? Are you willing to accept less time with family, friends, and partners? Can you accept the fact that, as a lawyer, you are probably not going to change the world and be the lead counsel in a landmark case before the United States Supreme Court?
If the answer is no, do not be afraid to make a change. At the end of the day, your happiness matters more than anything, and if you are not passionate about, and willing to make personal sacrifices for, a legal career, it may not be worth pursuing. Having the courage to make a change now will benefit you for a lifetime. Simply put, do what is right for you, not what others expect of you, or what you think you should do.
Life is short, and there is much more to life than law. Your family, your relationships, and your friends are far more important than winning a summary judgment motion or an appeal. So put yourself – and your happiness – first.
 See, e.g., www.leews.com Order Audio (CD) Program (incl. Primer [10th edition]) or Primer Alone (leews.com); Emanuel Law Outlines: Constitutional Law, Thirty-First Edition (Emanual Law Outlines): Steven L. Emanuel: 9781454824817: Amazon.com: Books
 Richard Fischl & Jeremy Paul, Getting to Maybe: How to Excel in Law School Exams (Brown Co., 1st ed. 1999), available at: Buy Getting to Maybe: How to Excel in Law School Exams Book Online at Low Prices in India | Getting to Maybe: How to Excel in Law School Exams Reviews & Ratings - Amazon.in.
 See Priscilla Henson, Addiction and Substance Abuse in Lawyers: Statistics to Know (July 5, 2022), available at: Addiction & Substance Abuse in Lawyers: Statistics to Know (americanaddictioncenters.org)
 See Leslie Satterlee, A Fool For a Client: Why Lawyers Should Not Represent Themselves in Divorce, available at: A Fool for a Client: Why Lawyers Should Not Represent Themselves in Divorce – woodnicklaw.com; Harrison Barnes, Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give, available at: Why Big Law Firms Attorneys Are So Likely to Get Divorced: Stressed, Tired, Mad and With Nothing More to Give | BCGSearch.com
Monday, August 8, 2022
In the next few weeks, a new class of law students will flock to law school campuses for orientation and the start of classes. If you are one of those new students--welcome! Over the next few weeks, you will be inundated with advice on how to survive law school. Allow me to chime in with advice gathered from a decade plus of teaching and attending law school twice--one as a student and once as the spouse of a law student. Because this blog is focused on appellate advocacy, I will give a few tips too for students interested in an appellate career. I am going to post 5 tips this week and 5 more next week.
#1—Read the syllabus, the course website, and emails from your professor. Before your class starts, you should carefully review the course documents. These documents should give you valuable information about the course, and your professor will expect you to be informed on what they contain—like due dates and formatting rules. These course documents are similar to court rules, something that you as an attorney will be expected to know and follow when handling a matter.
#2—Go to office hours. Chances are really good that your professors are a cool group of people with vast legal experience and connections. You should get to know your professors by visiting them in office hours. Ask them questions about the course, ask them questions about the practice of law, ask them questions about their careers. These visits will provide you will valuable information about the course and about possible legal careers. It will also help your professors write you letters of recommendation since they will know who you are apart from the in-class experience.
#3—Go to cool events on campus. Is there a judge coming to talk to a student group? Perhaps an alum is giving a talk on their niche practice area? Maybe a court is hearing oral argument on a case. Whatever it is, try to go to these events. Not only will you likely get free food, but you will also learn something new. When I was in law school I got to meet the Watergate prosecutor Archibald Cox and his wife of 70 years. He was being honored with a portrait unveiling and the whole Harvard Law community was invited. I was surprised that few students attended, but I am glad that I went!
#4—Recognize that you will probably suffer from imposter syndrome. Unfortunately, at some point during your 1L year you will probably suffer from imposter syndrome, meaning you will think that you only got into law school by some sort of lucky (or maybe unlucky) mistake and you are not worthy to be a law student. Imposter syndrome stinks but is also very prevalent. I had (sometimes still have) it. I suspect that most law students do too. Law school is hard and overwhelming, especially for first generation students. I would encourage you to talk to a trusted mentor about your feelings, and maybe even some close law school friends or faculty if you feel comfortable. You will be surprised what you hear!
#5—Understand that the amount that you talk in class rarely correlates with good grades. I am not telling you to not participate in class—you should participate. But please understand that those students who talk all the time (we called them gunners) do not have their #&*$ together any more than you do. Nearly everyone in your class is struggling to adapt to law school.
Saturday, July 30, 2022
Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.
1. Start strong and get to the point quickly.
Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:
- Tells the court in one sentence why you should win.
- States clearly what remedy you are seeking.
- Explains why the court should rule in your favor.
- Presents the strongest facts and legal authority that support your argument.
Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor.
2. Focus on the facts.
In most instances, the facts – not the law -- win cases.
An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.
To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.
As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.
3. Adopt a more objective tone.
Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:
- Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
- Explains how a ruling in your favor will affect future cases and litigants.
- Considers the policy implications of a ruling in your favor.
- Addresses institutional considerations, such as how the public might react to a ruling in your favor.
- Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.
Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.
4. Break the rules – sometimes.
When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.
Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:
- Captures the reader’s attention from the beginning.
- Emphasizes the most favorable facts and law immediately and throughout the brief.
- Appeals to emotion where appropriate.
- Exposes the logical flaws in your adversary’s argument.
- Uses metaphors or other literary devices to enhance persuasion.
- Ends powerfully.
Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:
During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.” Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.
This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.
5. Perception is reality – do not make mistakes that undermine your credibility.
Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:
- Spelling errors
- Long sentences (i.e., over twenty-five words)
- Excessively long paragraphs (e.g., one paragraph occupying an entire page)
- Failure to comply with the local court rules
- Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
- Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
- Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
- Avoiding unfavorable facts or law
- Requesting relief that the court is not empowered to grant
- Including irrelevant facts or law in your brief (and including unnecessary string cites)
Avoid making these and other mistakes at all costs.
6. The law will only get you so far; convince the court that it is doing the right thing by ruling for you.
Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.
Saturday, July 23, 2022
Many of my students believe I “prohibit” any use of passive voice. I certainly discourage passive voice, especially in objective writing. As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity. As Bryan Garner explained in his 2019 Michigan Bar Journal piece: “Stylists agree” passive voice is “generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.” Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34 (Dec. 2019).
However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.” Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).” Id. at 34.
As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice. Garner asks us to count the passive voice examples in this passage:
In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.” Id. at 35. Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.
I especially like Garner’s explanation: “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).” Id. Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.” Id.
This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point: “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).” Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.” Id.
Returning to the challenge passage, Garner says there are six passives: “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.” Id. Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together. Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.” Id.
Finally, I would ask students to re-write this passage, with the most direct language possible. Students, and lawyers, can then compare their revisions to Garner’s:
In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Id. Garner removed what he calls “zombie nouns” along with passive voice, and made the “reader’s job” much easier. Id. Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.
Tuesday, June 28, 2022
A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.
First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.
Next, as Professor Alexa Chew explains in Citation Literacy, citations provide the law-trained reader with important information about the weight of the cited authority. Is it binding or only persuasive? Is it a recent case or well-settled law? Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.
Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.
That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.
Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).
 Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).
 Id. at 872-73.
 We’ll leave what “well-settled” law is for another day.
Saturday, June 4, 2022
It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.
1. Keep it simple, talk like a normal human being, and get out of the weeds.
If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.
After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:
Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.
This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:
Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.
Again, this isn’t perfect, but you get the point. Keep it simple and direct.
2. Address the court’s questions and concerns.
Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.
Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:
Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.
Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.
Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:
Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?
Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.
That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:
The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.
This response, although not perfect, responds directly to the justice’s concerns.
3. Acknowledge weaknesses in your argument.
Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.
The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.
That was bad.
And very damaging to her credibility.
4. Be passionate and emotional (when appropriate).
It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.
5. Be likable and relatable.
This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.
Sunday, May 22, 2022
Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.
Put simply, Camille Vasquez is a rockstar.
Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.
1. She is confident and owns the courtroom.
Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.
Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.
2. She uses non-verbal techniques effectively.
When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.
Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.
3. She knows how to adjust and follow up during cross-examination.
During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.
4. She knows how to strategically include comments that undercut a witness’s credibility.
Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:
“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)
“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)
“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)
The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.
5. She is prepared and has outworked Amber Heard’s attorneys.
This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.
Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.
6. She’s very smart.
Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.
7. She cares for and is a passionate advocate for her client.
This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.
In short, she is a good person – and good people make the best attorneys.
Saturday, March 19, 2022
My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments. As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more. In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process. My overall advice: make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.
I stress the one-sheet because it worked for me. Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes. Instead of fancy folders or notes, I suggest students distill the argument to one piece of paper. The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two. Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes.
As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice. I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching. In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting. See ABA Journal, Nov. 18, 2019,
I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.
Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here. Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.” See id. As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.” She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.” Id.
Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:
- Reread all briefs and entire case record, making notes and highlighting.
- Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
- Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
- Slice up your brief for the first draft of an outline.
- Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
- Question absolutely everything—even your own name. Stay up too late.
- Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
- Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
- Let at least three people down. (These are likely to be close friends or family members.)
- Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
- Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
- Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
- Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
- Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
- Reread everything.
- Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
- As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
- Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
- Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
- Check in with client.
- Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
- Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
- Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
- Reread everything. Condense argument down to a one-pager.
- Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
- Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
- Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
- Reread everything.
- Decide you hate your suit. Wish that suits of armor were still a thing.
- No—not sigh—breathe.
- Reread everything. Boil down outline to one word and the dancing woman emoji.
- Set four alarm clocks. Or is it alarms clock?
Id. Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article.
I wish you all great oral arguments, with one-sheets and humor as your guides.
Saturday, March 12, 2022
Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.
This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.
Below are several tips that attorneys should consider when preparing for an appellate oral argument.
1. Begin by addressing the weaknesses in your argument.
Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.
Appellate judges aren’t stupid.
They know the law.
They know the record.
And they know what your strongest arguments are – and they probably don’t care.
Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.
For example, in Maryland v. King, where the Court considered whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:
[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.
Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)
Justice Scalia: That proves absolutely nothing.
[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.
Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.
The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.
The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.
Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value.
2. Appellate courts care about their institutional legitimacy and your argument should reflect that reality.
The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.
That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.
Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.
3. The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.
When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.
But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.
That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.
To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.
For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).
4. Know who your friends are and target the swing justices.
Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.
Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.
To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.
5. Be conversational and relatable, not confrontational and rigid.
Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.
That approach is a mistake. An oral argument should be a conversation, not a confrontation.
Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.
Judges – like all people – may be more likely to agree with a litigant that they like.
Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.
6. Think of the one thing that you want to say – and say it in a way that the judges will not forget.
This needs no explanation.
Watch Matthew McConaughey’s closing argument in A Time to Kill.
 Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).
March 12, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (1)
Sunday, February 27, 2022
“God Hates Fags.”
“God hates you.”
Should the First Amendment be interpreted to protect this nonsense?
Some speech is so despicable – and so injurious – that it should not receive First Amendment protection. Indeed, individuals should be permitted to recover damages for emotional distress where speech:
- Intentionally targets a private and in some cases, a public figure;
- Has no social value (e.g., “God Hates Fags”); and
- Causes severe emotional distress.
Put simply, the First Amendment should not be construed to allow individuals to hurl vicious verbal assaults at citizens with impunity, particularly where such speech causes substantial harm.
By way of background, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Of course, protecting speech is essential to ensuring liberty, autonomy, and decentralized governance. Furthermore, the right to free expression promotes a “marketplace of ideas” that exposes citizens to diverse perspectives on matters of public and political significance, which is vital to ensuring an informed citizenry and a healthy democracy.
For that reason, offensive, distasteful, and unpopular speech – particularly on matters of public concern – should receive the strongest First Amendment protection. In Cohen v. California, for example, the United States Supreme Court correctly held that the First Amendment prohibited the prosecution of an individual who entered a courthouse wearing a shirt stating, “Fuck the Draft.” Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning. Also, in Hustler v. Falwell, the Court held that the First Amendment protected the satirical depiction of a preacher having sex with his mother in an outhouse. Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment. And in Snyder v. Phelps, the Court held that members of the Westboro Baptist Church had a First Amendment right to display signs stating, among other things, “God Hates Fags” and “Thank God for 9/11” outside of a church where a family was grieving the loss of their son. In most of these cases, the Court’s decisions rightfully affirmed that, in a free and democratic society, citizens must tolerate speech – and expressive conduct – that is offensive and unpopular. Otherwise, the right to speech would allow the government to censor speech that it subjectively deemed undesirable. That result would be to chill speech and render the First Amendment meaningless.
But is there no limit on what citizens can say or express?
To be sure, the Court has placed some limits on the right to free speech. For example, in Miller v. California, the Court held that the First Amendment did not protect obscenity, which is defined as speech that had no “literary, scientific, or artistic value,” and that appeals to the “prurient (sexual) interest.” One can legitimately question why speech must appeal to sexual matters to be obscene. Also, in Brandenburg v. Ohio, the Court held that the First Amendment did not protect speech that incited others to commit imminent and unlawful violence. And in numerous cases, including City of Renton v. Playtime Theatres, the Court held that states could place reasonable time, place, and manner restrictions on speech.
But outside of these limited categories, should the First Amendment protect speech regardless of how vile or harmful?
In other words, is “Fuck the Draft” the same as “God Hates Fags?” And should the First Amendment permit a magazine to publish a satire of a preacher having sex with his mother in an outhouse?
And should the First Amendment be construed to permit all speech, no matter how vile and harmful, if it targets private individuals, has no social value, and causes severe emotional distress?
Put simply, Snyder v. Phelps was wrongly decided.
As stated above, in Snyder, the Court, in an 8-1 decision, held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a church where a family was mourning the loss of their son in the Iraq War with signs that said, among other things “God Hates Fags” and “Thank God for 9/11.” The Court’s decision emphasized, among other things, that the First Amendment requires that citizens tolerate offensive speech such as that expressed by the Westboro Baptist Church.
The Court got it wrong.
When, as in Snyder, speakers target private individuals with despicable speech that has no social value and that causes severe emotional distress, those individuals should be permitted to recover damages for the intentional infliction of emotional distress.
Importantly, Justice Samuel Alito agrees and, in a persuasive dissent, explained that the First Amendment’s underlying purposes are not frustrated by allowing individuals to sue for emotional distress resulting from zero-value – and harmful – speech:
Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. He [Petitioner] is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right … They appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. 1 The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.
I cannot agree either.
Moreover, as Justice Alito noted, the Westboro Baptist Church had alternative avenues by which to disseminate their hateful views. As Justice Alito stated:
Respondents and other members of their church … have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.
Perhaps most importantly, Justice Alito recognized that speech can – and does – cause substantial injury, and when it does, the First Amendment should not bar recovery for the intentional infliction of emotional distress:
This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.
Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide. There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.
The First Amendment should not be construed to protect this nonsense the law should not turn a blind eye to the harm it causes.
To be clear, this does not mean that state governments should be permitted to criminalize such speech. It does mean, however, that private, and, in some cases, public figures should be allowed to pursue a claim for the intentional infliction of emotional distress where they are intentionally targeted with speech of no social value that causes severe and lasting harm.
This argument should not be construed to support a hate speech exception to the First Amendment. After all, how would one define ‘hate speech?” Such an exception, due to its subjectivity and arbitrariness, would undermine significantly the First Amendment’s core purpose of promoting a marketplace of ideas in which unpopular, distasteful, and offensive ideas are tolerated.
But there is a limit.
As Justice Alito emphasized in Snyder, some speech is of such low value – and so harmful – that it supports a civil suit for the intentional infliction of emotional distress. Statements such as “God Hates Fags” and “Fags Doom Nations” have no literary, scientific, or artistic value and, although not sexual, can be every bit as obscene as the most revolting sexual images. The speech at issue in Snyder and Hustler had no social value. It was utter garbage and contributed nothing to public debate or the “marketplace of ideas.” But it did cause severe – and lasting – emotional distress. Thus, in some instances, there should be a civil remedy for victims who are intentionally targeted with such speech.
Of course, some will make the slippery slope argument, arguing that any restrictions on speech other than the narrow categories already delineated will result in a chilling effect and give the government the power to restrict any speech that it deems offensive or unpopular. This argument is without merit because it assumes without any evidence that any failure to fully protect even the most injurious speech – such as “God Hates Fags” – will inevitably lead to a ban on other forms of traditionally protected speech. That view essentially prohibits restricting any speech no matter how valueless and no matter how injurious, and ignores the harm that such speech can – and does – cause.
Ultimately, free speech is an essential component of ensuring liberty and an informed democracy. Accordingly, unpopular, offensive, and distasteful speech must be welcome in a society that values diversity. But that is not a “license for … vicious verbal assault[s]” upon citizens that serves no purpose other than to degrade and demean people, and that causes substantial and often irreparable harm, including suicide.
 562 U.S. 443 (2011).
 U.S. Const., Amend. I.
 403 U.S. 15 (1971).
 491 U.S. 397 (1989).
 485 U.S. 46 (1987).
 137 S. Ct. 1744 (2016).
 562 U.S. 443 (2011).
 413 U.S. 15 (1973).
 395 U.S. 444 (1969).
 475 U.S. 41 (1986).
 See Adam Lamparello, ‘God Hates Fags’ Is Not the Same as ‘Fuck the Draft’: Introducing the Non-Sexual Obscenity Doctrine, 84 UMKC L. Rev. 61 (2015).
 562 U.S. 443 (Alito, J. dissenting) (emphasis added).
 Id. (emphasis added).
 Id. (emphasis added) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).
 See, e.g., Jane E. Allen, Rutgers Suicide: Internet Humiliation Trauma for Teen (September 30, 2010), available at: Rutgers Suicide: Internet Humiliation Trauma for Teen - ABC News (go.com).
 See, e.g., Mudasir Kamal and William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation (September 2016), available at: Revenge Pornography: Mental Health Implications and Related Legislation | Journal of the American Academy of Psychiatry and the Law (jaapl.org).
 See, e.g., Claypool Law Firm, Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (Dec. 18, 2017), available at: Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (claypoollawfirm.com).
February 27, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Saturday, February 19, 2022
Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge
In my LRW II classes last week, we reviewed persuasive Statement of Fact headings. I repeated my usual points on making the headings a bit catchy, but completely honest and logical. I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”).
In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.
Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,
https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge. As Garner reminded readers he: “occasionally interview[s] long-dead authors. Another name for it is active reading. Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.” In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court. Id. I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.
Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.” The Justice’s hypothetical reply is especially helpful for all appellate writers to remember: “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.” Id. As I told my students, a careful summary where parties agree can sometimes be helpful. Garner notes Justice Rutledge might say:
This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief. It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains. It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.
In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.” Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect. Id. Garner explained Justice Rutledge’s point on dealing with adverse facts this way: “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.” Id.
Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility. Id. Garner concludes his article asking for the Justice’s concluding thoughts. The Justice’s hypothetical reply is: “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.” One great way to add interest is to give your court clear, concise, and interesting facts.
I wish you happy drafting.
Sunday, January 23, 2022
Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.
But disparate outcomes among groups do not always reflect discrimination.
In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.
I. Disparity does not equal discrimination.
Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.
A. In many areas, disparity cannot be attributed to discrimination.
Disparities exist everywhere. For example:
The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.
The majority of legal writing professors are female.
The overwhelming majority of individuals convicted of violent crimes are men.
The majority of nurses are female.
The majority of professional football and basketball players are African-American.
The majority of professional baseball players are white.
The majority of methamphetamine users are white.
Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes. And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.
Put simply, identifying a disparity in a particular context proves nothing.
B. Disparities exist within groups based on cultural and other factors unrelated to discrimination.
The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group. What did social scientists identify as the reason for the disparity?
The quality of a person’s family upbringing.
Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:
[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.
Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:
How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”
Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.” Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”
In other words, not all – or even most – disparities are reducible to racism
C. When objective and non-discriminatory measures are used, disparate outcomes still result.
In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname. From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry. In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry. And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.
Does this mean that the NFL is discriminating against African American kickers? Of course not.
D. Disparities result because individuals self-select into different professions.
Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices. As Sowell explains:
There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.
To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”
Simply put, in many instances, disparate outcomes have nothing to do with discrimination.
II. The solution – use empirical data to exclude non-discriminatory causes of disparity.
As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.
As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.
 See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube
 See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)
 See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles
 See Registered Nurse Demographics and Statistics (2022), available at: Registered Nurse Demographics and Statistics : Number Of Registered Nurses In The US (zippia.com)
 See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista
 See Professional Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics : Number Of Professional Baseball Players In The US (zippia.com)
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See id.
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See id.
 See id.
 See id.
 See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)
 See id.
 See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review
 See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube
Saturday, January 15, 2022
The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.
1. Don’t write.
The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.
Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.
2. Don’t let anyone read your first draft – or your final draft.
Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.
Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”
Yeah, whatever. Go away.
Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”
Yes, and your comments about my writing have just been deleted.
The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”
None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.
The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.
3. “Write drunk. Edit sober.”
To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.
If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.
4. Invent words.
Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.
What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.
5. Sometimes, throw IRAC/CRAC in the proverbial garbage.
In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.
Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.
Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.
Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…
Blah, blah, blah.
Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:
The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.
Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.
6. If it sounds good to the ear, write it and keep it.
When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:
Don’t use passive voice.
Don’t end sentences with a preposition.
Don’t mix verb tenses.
This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:
Use common sense.
Trust your judgment.
Rely on your instincts.
After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it. Be sure, however, that what you hear – and write – is grammatically correct.
7. Get a little nasty sometimes.
People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.
To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.
Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.
In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit. Consider the following:
Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.
Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.
After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.
8. Don’t edit too much.
Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”
These people are so annoying and truly don’t see the forest for the trees.
The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.
Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.
9. Write like a human being.
Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?
Be humorous (in appropriate circumstances).
In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”
Huh? Have you ever heard anyone use the word axiomatic during a conversation?
Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.
People don’t talk like that. You shouldn’t write like that.
Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:
Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.
The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.” The questioner’s response? “Great answer.”
Indeed, it was.
10. Ask questions.
Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage. In so doing, Roberts wrote as follows:
The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”
Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.
So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.
 Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.
 Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).
 Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)
 Id. at 1.
 576 U.S. 644 (2015).
 Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)
I hope you are all enjoying 2022 so far. As you look for ways to refresh your writing in the new year, consider using E-Prime. Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’” See Christopher Wren, E-Prime Briefly: A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.
While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing. For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words. Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.
As Mark Cohen explained: “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.” Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing, https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020). Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.” Id.
Wren also provides great examples of E-Prime removing passive voice and shortening clauses. Wren, A Lawyer Writes in E-Prime, at 52. Here are two of Wren’s examples:
Before: Doe’s assertion that he was prejudiced by the joint trial is without merit.
After E-Prime: Doe’s assertion that the joint trial prejudiced him lacks merit.
Before: Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.
After E-Prime: Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.
As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice. Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives. Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts. Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.
In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause Englishlanguage communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.” Id. When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical. But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “EPrime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.” Id.
Thus, I urge you to give E-Prime a try. With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.
Sunday, January 9, 2022
I finished my first book of the year this weekend—The Law Student’s Guide to Doing Well and Being Well by Professor Shailini Jandial George. Although it is geared toward law students, as I will explain below, it is a book that most lawyers would greatly benefit from reading. And, with the new year upon us, what better time to focus on wellness?
Let’s face it, we are part of a stressed-out profession. The result—high levels of depression and substance abuse. For most of us, the pandemic has exacerbated our stress. I have certainly seen it in my own life, especially surrounding attempts to balance caretaking duties with work. Appellate practitioners are fortunate in that they often have more day-to-day flexibility in their schedules as opposed to litigators. My husband, for example, recently moved from a litigation position to an appellate position in part because his court schedule offered little flexibility, which added to our family’s stress. And while there are other books out there on lawyer stress and wellbeing, I really appreciate, and learned much from, Professor George’s recent book.
Professor George’s book tackles the wellbeing crisis among lawyers from an interesting perspective. She focuses primarily on the topic of cognitive well-being, or maximizing the potential of one’s brain, which relates to the “do well” part of the book’s title. As she explains, there is a “deep connection between brain health and wellness,” so by “doing well” we can “be well.”
Early in the book, Professor George sets up the importance of the brain as a tool of the lawyer’s trade—a image she returns to throughout the book. Just like a musician would care for her instrument, lawyers should care for their brains. Stress, distraction, poor exercise and diet, and a lack of sleep do a number on our brain. I certainly see that in my own life. Professor George devotes a chapter to each of these topics and offers self-reflection exercises and practical tips to improve our brain health.
So much of what she wrote resonated deeply with me, but let me share just a few points that especially stood out. First, I learned a lot in the chapter on focus and distractions. Did you know that “[t]he more we us the part of our brain activated by distractions, the more we weaken the part of our brain needed for deep focus”? Or that a group of researchers compared the cognitive ability of multi-taskers and persons who “had just smoked marijuana,” and the marijuana smokers “came out on top.” Yikes. I have certainly seen my ability to focus reduced in recent years, and I do think that the constant distractions of 24/7 connectivity and social media play a role. Professor George offers some excellent tips for improving focus and reducing distractions. One that I might put into practice more this new year is turning off distracting notifications on my computer and putting away my phone for a period of time each week to allow me to focus on some big projects both at work and at home, which with the pandemic are increasingly blended.
Second, I was struck by the connection between diet and exercise and brain health. I know that exercise and diet are good for physical health, but I never really thought about how diet and exercise impact my ability to think. Professor George offers specific foods to eat (and avoid) to improve brain health. She also describes how different types of exercise impact cognitive ability and offers different types of exercise to improve different aspects problems you might be facing. Perhaps the most personally striking statement she made was to encourage her readers to find their own “internal motivation” for exercise, noting those who exercise for the “internal benefits” tend to enjoy it more and stick with it better than those who do it for a special event. Now that I have hit a certain (undisclosed) age, the thought of keeping my mind and body in great shape to keep up with my active children is very important.
The last point that I want to share is the general applicability of Professor George’s book. While she did write it for law students, nearly all of it can be directly applied to lawyers, even the self-reflection exercises. It isn’t hard to take an exercise that has you look at a successful study session and apply it instead to a successful brief writing session or trial prep. Most of the self-reflection exercises are even more general than that (for example, the reflections on sleep, exercise, and diet are very general, with only one easily deletable reference to law school). And before you try to argue that you don’t have time for a self-care book, Professor George’s book is an easy, short read. Her style is delightful and funny, and the book weighs in at only 134 pages (excluding notes and the index).
Not only can the book be directly applied to practicing lawyers, but I believe that we have as much, if not more, to gain from it as law students. I did a good job practicing wellness as a law student. I find it harder now, with both work and family demands, to keep it up wellness practices.
I am usually not one for New Year’s resolutions or a word to apply to one’s year, but reading Professor George’s book has made me think about adopting “self-care” as my 2022 theme. She ends her book with a final self-reflection that asks readers to come up with concrete things from the book that they can implement this day, this week, and this month. I still need to sit down and do that exercise (there is no quiet in my house on the weekends), but it is certainly something that I need to do. I know that focusing on self-care and “doing well” will make me a better professor, mom, and spouse.
I would encourage any reader who wants to “do well” and “be well” to pick up this book. In full disclosure, I received a complimentary copy to review, but the book is well worth its low sticker price. I would encourage law firms and law schools to make this book available to employees and students. It would also make an excellent text for a law school class or CLE on wellness.
 I have two young children ages 3.5 and 1.5.
 When he applied for his new job late last year he calculated the last day he had been working but not in court. It was in June…of 2020.
 The number of times I have “lost” my cell phone since my 3.5 year old was born is pretty astounding.
 I do know the importance of sleep on my ability to think, but that is largely because my kids are still really young so good sleep is rare in our house.
 Good thing too. It seems like all the special events are canceled these days…
 Especially on the diet part—feeding four people, one of whom would live solely on dino nuggets (not on the approved food list) and yogurt, is a challenge.
Sunday, November 28, 2021
This post was written by Daria Brown, a graduating senior at Georgia College and State University and the President of Georgia College's Mock Trial team. Daria will begin her first year of law school in the fall of 2022.
Addicts don’t belong in prison. And drug courts are not a proper solution.
In recent years, drug courts have proliferated in many states as an alternative to incarceration for low-level drug offenders. Ostensibly predicated on a rehabilitative rather than punitive paradigm, drug courts strive to provide low-level drug offenders with treatment in lieu of incarceration.
But upon closer examination, drug courts aren’t the solution. In fact, they are part of the problem because they retain a punitive approach to treating drug offenders and perpetuate precisely the type of moral blameworthiness—and lack of empathy—that often plagues those who struggle with addiction, and makes it difficult, if not impossible, for such individuals to lead fully recovered lives.
This article proposes a new approach that advocates for a truly rehabilitative, rather than retributive model, and that attempts to replace condemnation with compassion.
By way of background, as a response to the overwhelming number of arrests for minor drug law violations in the 1980s and 1990s, drug courts were created to serve as an alternative correctional -- and rehabilitative -- approach for defendants charged with low-level drug crimes, such as possession of marijuana. And these courts have experienced some degree of success, as many individuals -- who would have otherwise been incarcerated -- have recovered from their addictions and proceeded to live productive lives.
The truth, however, is that these stories are the exception, not the rule. And the inconvenient truth is that drug courts, while well-intended, are fundamentally flawed for several reasons. Most prominent among them is that drug court programs misunderstand the nature of addiction, unjustifiably retain punitive elements that reflect stigmatization of addicted offenders and fail to provide the type of treatment protocols that are essential to maximizing positive outcomes for offenders. Those flaws are detailed below, followed by principled solutions that will enhance the efficacy and fairness with which we treat individuals who struggle with addiction.
I. The Problems
A. The individuals responsible for implementing and overseeing treatment of addicted offenders have a limited understanding of addiction.
Prosecutors and judges are given complete discretion over who is referred to drug court and which treatment is most appropriate for each individual. For example, prosecutors are given the power to “cherry-pick” participants who they believe will be successful in the program, and often intentionally exclude precisely those defendants who need the most help, namely, those with a history of addiction. As such, offenders who are in dire need of treatment often receive no treatment at all and are instead relegated to a prison where they routinely decompensate.
This should come as no surprise. After all, why should prosecutors and judges, who have no education and experience in addiction or psychology, have the power to determine which defendants receive treatments, and the authority to set the parameters of that treatment? It is equivalent to permitting a cardiologist to determine whether a patient suffers from bipolar disorder. If drug courts are serious about providing efficacious and meaningful treatment to those offenders who need it, they should not entrust decision-making authority with individuals who know nothing of the problem that drug courts are designed to treat.
B. Drug courts strive to rehabilitate yet retain a punitive model that decreases the likelihood of successful treatment.
You can’t scare people into recovery. It’s like a parent telling a child that, if they continue to listen to a certain type of music, they will be grounded for six months. That might work in the short term. It utterly fails in the long term. Drug courts suffer from this problem. Put differently, if you are committing to a rehabilitative model, you have to be truly committed to that model.
Indeed, drug courts have adopted two intrinsically contradictory models which undermine their efficacy: the disease model (rehabilitative) and the rational actor model (punitive). The disease model recognizes that drug use for addicted individuals is compulsory and not morally blameworthy. Conversely, the rational actor model states that any given decision-maker is a rational person who is able to evaluate positive and negative outcomes to make the most rational decision—and thus would attach moral culpability to drug addiction.
Unfortunately, drug court programs embrace these contradictory models and, in so doing, impede treatment efficacy and, ultimately, an offender’s prospects for a full recovery. To be sure, in a drug court treatment program, an individual is given treatment based on the underlying assumption that they have an addiction, but if they fail to comply with all treatment protocols, they are threatened with punishment, including incarceration.
These models cannot function together because the rational actor model misunderstands the nature of addiction and the road to a successful recovery. Indeed, recovery is a difficult path, where setbacks and relapses are often common. Failing to understand the turbulent road to recovery forces addicts to attempt recovery under the shadow of shame and condemnation, and when a setback occurs, treatment is withdrawn and punishment, including incarceration, implemented. This is a prescription for failure.
C. For the participants who could benefit most from treatment, failure is far too common.
For individuals who struggle with addiction—and are selected to participate in a drug court program—in most cases, they must plead guilty to their charges as a condition of their referral. And if an individual fails to complete the program, a person may not amend their guilty plea. Therefore, these people lose both the opportunity to plead guilty to a lesser offense and receive support services essential to their recovery. Furthermore, in some instances, a person struggling with addiction may face a longer sentence than they otherwise would have if they hadn’t been referred to drug court in the first instance when considering the days or weeks of incarceration they endured during the program as punishment for relapse or other minor infractions plus their full sentence decided by the judge upon removal from the program.
This troubling dynamic begs the question: what is the purpose of drug courts? Do they reflect a principled commitment to treating the issues underlying addiction? Do they focus on maximizing positive outcomes for offenders, many of whom are from marginalized communities—which requires tolerance of and treatment for setbacks, including relapses? Or do they reflect a half-hearted attempt to provide treatment that, upon the first hint of non-compliance, leads to incarceration and cessation of all treatment efforts? In many instances, it is the latter. And that makes drug courts rehabilitative in name only and restorative in theory but not in fact.
These are only a few of the major issues involved in drug court programs, but they demonstrate a fundamental need for a more suitable solution to address addiction, remove stigmatization, and provide meaningful rehabilitation. Below are three policy recommendations that would improve the efficacy and fairness and drug treatment in the criminal justice system.
II. The Solutions
A. Trained psychologists and psychiatrists -- not prosecutors and judges -- should evaluate all criminal defendants who struggle with drug addiction.
Many drug users struggle with serious and life-threatening addictions. And many of these people also suffer from mental health issues, such as depression or bipolar disorder, potentially using illegal drugs to self-medicate. For this and other reasons, trained psychologists and psychiatrists should evaluate and recommend the proper course of treatment for all defendants charged with drug crimes. These experts, unlike prosecutors and judges, understand addiction and mental illness, and thus can recommend and implement individualized treatment that will have the highest likelihood of success. In many instances, such treatment will likely include administering medication and providing cognitive behavioral therapy, as both psychiatric and psychological treatment increase substantially the likelihood of recovery.
Furthermore, rather than being forced to plead guilty to a charged offense, the person should be granted a continuance for their case for a period of time deemed appropriate for treatment based on a psychiatrist’s and psychologist’s recommendations. Additionally, if a person is financially disadvantaged and unable to afford the medication prescribed and treatment recommended, the government should supply aid necessary to cover these costs. After all, if the criminal justice system is truly committed to rehabilitation, then it should put its money where its mouth is—figuratively and literally.
Now, if an offender struggling with addiction or mental illness is charged with a violent crime, the offender’s psychiatrist and psychologist should include in their assessment what effect, if any, the underlying disorders may have on the defendant’s culpability. Furthermore, if a defendant pleads or is adjudged guilty, the court should consider these assessments as mitigating factors at the sentencing stage. This will result in truly individualized sentences that reflect moral blameworthiness more accurately and result in less severe sentences more frequently.
Finally, this approach would prevent prosecutors—who have no expertise in understanding or treating addiction or mental illness—from cherry-picking which defendants are worthy of treatment, from imposing arbitrary barriers to accessing such treatment, and judges from implementing treatment programs that have minimal, if any, likelihood of success.
B. The stigma and discrimination directed to individuals struggling with addiction and/or mental illness must end now.
Individuals who struggle with addiction or mental illness should never be stigmatized or marginalized. These people are forced to carry around society’s label of “otherness,” and that “otherness” leads to being denied admission to universities, rejected from employers, and ostracized by community members. This is wrong. Giving people a second chance reflects empathy and understanding, which is often lacking from even the most passionate advocates of social justice.
Indeed, when jobs and education opportunities are gate-kept from individuals simply because they have a past, it perpetuates the cycle of recidivism and relapse that is so common in cases of substance abuse. Most importantly, it dehumanizes people who have fought valiantly to overcome addiction and adversity and disregards the inherent human dignity that all humans possess. Simply stated, we need to recognize that all humans are flawed and that, ultimately, we all share similar struggles. Treating people with compassion is essential to achieving justice in a meaningful and transformative manner.
C. Implement community-based solutions that place individuals in the best position to achieve permanent recovery.
One of the major issues with drug court programs and incarceration is the lack of support upon reentry into society, which often prevents individuals from achieving the level of financial and social stability necessary to avoid reoffending.
Community-based solutions can help to facilitate an individual’s transition into society and provide the support necessary to prevent relapse or recidivism. And these solutions can encompass a wide range of possibilities. For example, volunteers in the community may be granted tax breaks if they agree to mentor these individuals and help them adjust to their new life and assist their mentees in signing up for or getting involved in other community-based solutions.
Other community-based solutions may include granting the recently recovered person a lifetime membership to a community center such as the YMCA and contracting with local businesses to offer employment to individuals after successful completion of treatment. These businesses could receive tax breaks for their cooperation and continued dedication to affording opportunities to individuals who suffered from—and overcame—addiction or mental illness. Such an approach can help individuals to achieve stability and autonomy and to take responsibility for their lives and happiness. It also reflects the belief that giving people an opportunity to start anew is a chance worth taking.
Ultimately, current drug court programs, while well-intentioned, are not well-designed. The problem is that addiction and mental illness are largely misunderstood, often mistreated, and unnecessarily maligned. Dispensing with these stereotypes, which result in marginalization and discrimination, is the predicate to implementing meaningful and principled treatment programs. Most importantly, recognizing that people deserve a second chance, that morality has no place in addiction discourse, and that punishment is frequently devoid of purpose, is the first step to enacting reforms that respect human dignity and that reflect empathy for those that the criminal justice system has unjustly relegated to inconvenient enigmas.
 See Drug Policy Alliance, Drug Courts Are Not The Answer: Toward A Health-Centered Approach to Drug Use, (March 2011), available at: https://drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf
Sunday, November 14, 2021
In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court. The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.
1. The Court’s decisions are perceived as political and outcome-driven.
In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy. In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right, the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.” It was within these penumbras that the Court discovered a right to privacy.
In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.
To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy. Regardless of one’s view on abortion, the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.
Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text did not support recognizing a right to abortion. Undeterred by the text, however, the Court supported its decision by emphasizing that “[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.
The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.
Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.
2. The Court gets involved in disputes that the democratic process should resolve.
The Constitution says nothing about abortion.
It says nothing about same-sex marriage.
It says nothing about whether money constitutes speech.
It says nothing about whether imposing the death penalty for child rape is cruel and unusual.
Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.
3. The Court fails to defer to the democratic process when the Constitution is ambiguous.
The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.
For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause. Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.
Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause. The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.
Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”
4. The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.
Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.
For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act. In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers. Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.
Fair enough. That approach is reasonable – if applied consistently.
Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.
Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.
Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges.  In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. 
Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members. Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.
The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.
 See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 381 U.S. 479 (1965).
 Id. (emphasis added) (brackets added).
 410 U.S. 113 (1973).
 505 U.S. 833 (1992).
 See id.
 554 U.S. 407 (2008).
 524 U.S. 417 (1998).
 567 U.S. 519 (2012).
 See id.
 See id.
 570 U.S. 529 (2013).
 591 U.S. , 2020 WL 3492640 (2020).
 579 U.S. 582 (2016).
 138 S. Ct. 2448 (2018).
November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)