Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, June 3, 2022

Appellate Advocacy Blog Weekly Roundup Friday, June 3

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

June 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, May 21, 2022

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two

Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior.  I focused on the Fifth Circuit’s reminder:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes.  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022)

Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience.  Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022).  In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction.  Bovinett at 2.  Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.”  Id. at 2-3.  The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.”  Id. at 3.  For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’”  Id.  After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“  Id.  In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions.  Id

The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . .  Barinholtz inexcusably failed to investigate the jurisdictional facts.”  Id.  The court  “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.”  Id.  As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’”  Id

In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020.  Id. at 3-4.  Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.”  Id. at 4.   He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.”  Id

Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.”  Id.  As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.”  Id.  The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.”  Id.  The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.”  Id.  Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.

The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.”  Id. at 1-2.  According to the court:  “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions.  Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration.  Id.

The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion.  Id. at 5-6.  The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.”  Id. at 5.  For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.”  Id

According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.”  Id. at 6.  Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.”  Id.

Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.”  Id.  However, the court reasoned “the requirement directly addresses the sanctionable conduct:  Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”  Id.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.”  Cassens Weiss, “Seasoned Litigator.”  He explained he will probably seek rehearing and stated:  “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.”  Id.

I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott.  In the meantime, both cases give us all excellent reminders about competent representation and  sanctions.

May 21, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession | Permalink | Comments (0)

Sunday, May 15, 2022

A Plea for Pro Bono Service

In terms of pro bono service, our profession has a long way to go.  

Model Rule of Professional Conduct 6.1 makes clear that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay."  To that end, the Rule says that lawyers "should aspire to render at least fifty (50) hours of pro bono publico legal services per year." 

Let's be honest, though: 50 hours is pretty paltry.  If you take a two-week vacation, you can still satisfy Rule 6.1 with just one pro bono hour per week.  Even for busy lawyers, that's hardly "aspir[ational]."  Yet a large majority of lawyers aren't even approaching that bare-bones ethical minimum.  In 2017, the ABA's Standing Committee on Pro Bono and Public Service conducted a survey of over 47,000 lawyers across 24 states.  Here's what they found:

  • Barely half of responding lawyers provided any pro bono services in 2016.
  • Not even 20% of responding lawyers fulfilled Rule 6.1's minimum requirement.
  • Roughly one in five responding attorneys reported never having provided pro bono services of any kind.  (Read: Roughly one in five lawyers admitted to having committed professional misconduct.)

And the problem isn't that there's too little pro bono work to go around.  The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that in 2016, 86% of civil legal problems reported by low-income Americans received inadequate or no legal assistance.  And there's good reason to believe that the pandemic has exacerbated that access-to-justice gap.  

As attorneys, we have a state-sanctioned monopoly on legal services.  If we don't work to close the access-to-justice gap, no one will.  But across the board, we are falling far short of our professional and moral obligations.  We must do better.  

May 15, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, April 16, 2022

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

April 16, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, February 27, 2022

The First Amendment and Low-Value Speech That Causes Substantial Emotional Distress

“God Hates Fags.”[1]

“Fags Doom Nations.”[2]

“Fag Troops.”[3]

“God hates you.”[4]

Should the First Amendment be interpreted to protect this nonsense?

No.

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.”[5]

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.”[6] Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning.[7] 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.[8] Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment.[9] 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.[10] 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.”[11] 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.[12] 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.[13]

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?

No.

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?

No.

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.[14]  

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. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.[15]

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.[16]

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.[17]

Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide.[18] There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.[19]

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.[20]

 

[1] 562 U.S. 443 (2011).

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Const., Amend. I.

[6] 403 U.S. 15 (1971).

[7] 491 U.S. 397 (1989).

[8] 485 U.S. 46 (1987).

[9] 137 S. Ct. 1744 (2016).

[10] 562 U.S. 443 (2011).

[11] 413 U.S. 15 (1973).

[12] 395 U.S. 444 (1969).

[13]  475 U.S. 41 (1986).

[14] 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).

[15] 562 U.S. 443 (Alito, J. dissenting) (emphasis added).

[16] Id. (emphasis added).

[17] Id. (emphasis added) (quoting Chaplinsky v. New Hampshire315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).

[18] 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).

[19] 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).

[20] 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.

Id.    

 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.

February 19, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (1)

Thursday, February 3, 2022

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

I’m teaching The First Amendment this semester, which means I’m reading very closely a lot of United States Supreme Court opinions on freedom of expression. (An aside:  One of my favorite opinions for a close read of persuasive writing is Justice Alito’s dissenting opinion in Snyder v. Phelps; although I largely disagree with him on his reasoning and conclusions in that opinion, the opinion is a great example of using details and evoking emotion in support of reasoning.)

I was closely reading the majority opinion in RAV v. City of St. Paul, written by Justice Scalia, when I noticed this sentence, in which the Justice describes Respondent City of St. Paul’s argument about why its Bias Motivated Crime Ordinance did not violate the First Amendment (Scalia, writing for the majority, found that it did):

According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.”

Appellate lawyers know the ALWD Guide to Legal Citation or The Bluebook: A Uniform System of Citation rules for using [sic].  If there is a mistake in a quotation, “such as spelling, typographical, or grammatical errors,” says the ALWD Guide, authors may use [sic] to indicate that the error is not their own but is instead part of the original quotation.  Alternatively, authors may fix the error themselves, using brackets to correct the original author’s mistake. (For more, consult ALWD Guide Rule 39.6, Indicating Mistakes in the Original and The Bluebook Rule 5.2, Alterations and Quotations Within Quotations.)

Knowing these rules, I must confess that I was distracted by the [sic] in Justice Scalia’s sentence rather than confident that I understood his meaning.  What exactly was Justice Scalia’s concern that [sic] was signaling?  Was he suggesting that “on” should have been omitted? Or was he saying that the right word to use here was “upon”? Or was he suggesting something else altogether?  And, I wondered, how did the misuse of “on” make a difference to his opinion?  Or to St. Paul’s argument?  Or to anything for that matter?  Was Justice Scalia drawing my attention to the error just for the sake of showing that St. Paul had made an error? And, if so, why would Justice Scalia do that? 

Scalia’s choice to use [sic] here rather than pursue some other alternative made me wonder:  Even if a legal writer may draw attention to another writer’s error by using [sic] rather than correcting the mistake, should the legal writer do so?  Answering that question requires thinking about not only about how to accurately signal a mistake in a quotation, but also about how [sic] influences the persuasiveness of the document and the reader’s perception of the writer.

The first thing to think about when considering whether to use [sic] is that [sic] has the potential to create unnecessary ambiguity and distraction. [Sic] means more than what the ALWD Guide or The Bluebook suggest.  That is, although it’s true that [sic] can mean grammar or spelling error, it can also mean the presence of unexpected language or phrasing.  The Redbook, in fact, suggests that [sic] can be used to indicate either an error or an “oddity” in quotation.  

Miriam-Webster’s usage notes give this example. The Toronto Maple Leafs are not, in fact, the Toronto Maple Leaves.  The name does not reflect a grammatical error but an unusual usage of the word “leaf.”  Thus, a writer quoting the phrase “Maple Leafs [sic]” isn’t indicating a spelling error (i.e., the misspelling of the plural form of ‘leaf’) but instead is indicating an unexpected or novel usage of the word “leaf.”  So, when a writer uses [sic], particularly where there isn’t an obvious error, [sic]’s meaning may be ambiguous to the reader.

 In the case of Scalia’s sentence, the error of “impact on” wasn’t obvious to me, and so I was confused and distracted by its use.  I thought perhaps he was pointing to a grammatical error that I didn’t recognize, or, now that I’ve checked The Redbook, I think maybe he might have been pointing out one of those “oddities” The Redbook refers to.   I’m still not sure.

 I researched what Justice Scalia might have meant when he wrote “impact on [sic].”  The Redbook told me that “impact” as a verb is of “questionable” use, and that better choices would be “affect” or “influence.” So maybe Justice Scalia was signaling this questionable use. But both the ALWD Guide and The Bluebook say that [sic] should follow the error, and the ALWD Guide emphasizes that [sic] should be inserted “immediately after the word containing the mistake.” So, if Justice Scalia was using [sic] to indicate this disfavored usage, then [sic] should have followed “impact” rather than “on.”

Regarding the preposition “on,” The Redbook suggested that “on” is a preposition that commonly relates its object to another word based on the concept of space. So, perhaps Justice Scalia was signaling that “on” was misused in the phrase “impact on the right of free expression” because the relationship between St. Paul’s ordinance and the right of free expression is not one of space.  If that were Justice Scalia’s concern, then perhaps he used [sic] to signal to the reader that a more deftly written sentence would have left out “on” and simply said “impact the right of free expression.”

But, even then, perhaps Justice Scalia was not signaling that “on” was an “error” to be fixed at all.  Maybe he simply meant that “impact on” was an unexpected usage or an oddity.  The Redbook offers that “[t]he use of prepositions is highly idiomatic: there are no infallible rules to guide you in deciding what preposition to use with a particular word (emphasis added).  If that’s the case, then, Justice Scalia’s [sic] might have been expressing that “impact on” is an unexpected or unusual usage in the sentence’s context.

Ultimately, I wondered why Justice Scalia didn’t just change “impact on” to “[affect]” if that was his concern.  Both The ALWD Guide and The Bluebook would have allowed him to do so. But I think I can understand why Justice Scalia might not want to change St. Paul’s specific word choice.  If he made that kind of change, he would be doing more than addressing a simple and obvious error in the text, as he would do if he changed a comma to a semi-colon, corrected a misspelling, or changed a singular verb to a plural one.  Arguably, by changing “impact” to “affect,” Justice Scalia might actually have altered the meaning of St. Paul’s argument ever so slightly.  And, because he was quoting St. Paul, changing meaning is a legitimate concern.

Even after my research, I’m still not sure what Justice Scalia had in mind with “impact on [sic].”  But I am sure that I was distracted by its use, and I focused more on [sic] than what Justice Scalia was saying about the merits of St. Paul’s argument.  I wonder what would have happened if Justice Scalia had just left the quote alone.  While I don’t have scientific proof for my suggestion, I imagine most readers would easily understand the general meaning of “impact on” as it was used in the St. Paul’s quote.  It seems that the use of [sic] in the sentence attracts the reader’s attention to an unimportant point and wastes the reader’s time.  

The second thing to consider when thinking about [sic]’s persuasive use is that note that [sic] can be interpreted as a sneer—it can, in a contemptuous way, needlessly call attention to others’ errors. Miriam-Webster’s usage notes refer to this as problem of “etiquette”; in the context of legal writing, we might think of it as a problem of professionalism. Miriam-Webster says that [sic] can be used to “needlessly mak[e] a value judgment on someone else’s language habits.”  Even Garner’s Modern English Usage says that [sic] can be used “meanly,” as a way to show the writer’s sense of superiority. The Redbook says, notably, that [sic] “should never be used as a snide way to highlight the errors of another writer.”  But Miriam-Webster points out that “sometimes pedantic condescension is precisely what [the writer is] going for.” Bottom line:  don’t use a “sneering [sic].”

In the context of writing persuasively in the law, I’d take the concern about the sneering [sic] a bit further:  A sneering [sic] not just about etiquette or professionalism; using [sic] to point out an error in a party’s argument can also represent an appeal to a logical fallacy, the ad hominem argument.  The ad hominem argument is a fallacious argument that gets its strength from undermining a logical, reasoned argument by attacking the character of a person making the argument. This usage might be popular in situations where a writer uses [sic] to implicitly suggest that the argument contained in quotation cannot be trusted because the quote’s author is incapable of writing well.  In other words, using [sic] can distract the reader from an arguments’ merit and instead implicitly suggest to the reader there is something untrustworthy about the argument because of the writing errors of the author. If it’s the case that the errors represent an untrustworthy argument, there’s nothing fallacious about using [sic]. But, when the legal writer knows that [sic] is an implicit attack on the character of another, than [sic] is a problem.

So, where does this analysis of [sic] leave the legal writer?  First, it should leave the legal writer with the sense that correcting errors in other people’s writing is not only an accuracy problem but also a rhetorical one. That is, when writers choose to use [sic] or not, they make rhetorical choices.  Moreover, it should leave the writer with the sense that [sic] can be either a helpful corrective or an unhelpful distraction, and that the writer needs to understand these potential rhetorical effects on the audience before making a choice about using [sic].

Here are some best practices for using [sic] to correct an error in the quotation of another writer.

  • When possible, prefer not to use [sic]. Unless it really matters, don’t use [sic] to indicate an error or an odd or unexpected usage, I’d argue that Justice Scalia would have lost nothing—not accuracy, understandability, or influence--by leaving the quote from the City of St. Paul alone and avoiding [sic].  No reader would be confused that the phrase “impact on” was attributable to the City of St. Paul and not Justice Scalia.  And the phrase itself is not obviously “wrong.”  So, no harm, no foul.
  • Prefer paraphrasing instead. If you can avoid quoting a passage with an error and a paraphrase would work just as well, do that.  I think Justice Scalia could have been just as effective in his writing if he had paraphrased St. Paul’s argument like this: “St. Paul argues that the City did not intend its ordinance to affect the accused person’s free expression . . . .” Would the reader’s experience have been worse if Justice Scalia had paraphrased that portion of the quotation? 
  • If paraphrasing won’t work, prefer to fix the error. When an error must be corrected, or the error is distracting, correct it according to the ALWD Guide and The Bluebook rules rather than use [sic].  Frankly, correcting the error is a kinder, more professional thing to do. The Redbook agrees: “[I]t is better to correct those minor mistakes using brackets.” There are some instances, however, where correcting an error in a quote may not be the best option.  For example, you may not want to put your words in the mouth of your opponent.  In that case, [sic] might be best.  But, if the exact words aren’t that important, don’t quote the problematic content in first place.  Paraphrase instead.
  • If nothing else works, use [sic]. If rigorous accuracy in representing the original quotation is a must, then use [sic].  For example, rigorous accuracy might be needed when quoting statutes.  Another situation that would call for using [sic] to indicate errors in a quotation might be when a legal writer is quoting written or transcribed witness testimony.  If altering the testimony might be viewed as unethical or deceptive, then use [sic].  But don’t use [sic] repeatedly to indicate the same error by the same quoted author; one [sic] should be enough to put your reader on notice of the repeated mistake.

Thanks for reading! What are your thoughts on [sic]?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

February 3, 2022 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Sunday, January 23, 2022

Disparity's Relationship to Discrimination

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.[1]

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.[2]

The majority of legal writing professors are female.[3]

The overwhelming majority of individuals convicted of violent crimes are men.[4]

The majority of nurses are female.[5]

The majority of professional football and basketball players are African-American.[6]

The majority of professional baseball players are white.[7]

The majority of methamphetamine users are white.[8]

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.[9] 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.[10] 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.[11]

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.”[12]

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.”[13] Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”[14]

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.[15] From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry.[16] 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.[17] And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.[18]

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.[19] 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.[20]

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.”[21] 

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.

[1] 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

[2] See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)

[3] See Legal Writing Professor Demographics and Statistics [2022]: Number Of Legal Writing Professors In The US (zippia.com)

[4] 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

[5] See Registered Nurse Demographics and Statistics (2022), available at:  Registered Nurse Demographics and Statistics [2022]: Number Of Registered Nurses In The US (zippia.com)

[6] See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista

[7]  See Professional  Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics [2022]: Number Of Professional Baseball Players In The US (zippia.com)

[8] trends of meth use by ethnicity and gender by www.drug-rehabs.org

[9] 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)

[10] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

[11] 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)

[12] See id.

[13] See id.

[14] See id.

[15] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[16] See id.

[17] See id.

[18] See id.

[19] 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)

[20] See id.

[21] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[22] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

January 23, 2022 in Appellate Justice, Appellate Practice, Books, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Monday, January 3, 2022

2022 & The Marble Place Blog

Robert has already welcomed 2022 in his post yesterday. He provided some predictions regarding several big cases before the Supreme Court this year. Two other big cases, which address federal vaccine mandates, will be heard this Friday. I suspect we will get an expedited decision in those cases given the effective dates of the policies.

Speaking of the Supreme Court, noted Supreme Court journalist Tony Mauro has a new blog that he has aptly named The Marble Palace Blog. He recently blogged about the most recent issue of the Journal of Appellate Practice and Process, which addresses what judges can do to ameliorate the divisions in our country. Tony was one of the authors I recruited to write a preface for the issue, which I discuss here.

In his post, Tony pulls key excerpts from seven diverse pieces. Each excerpt offers a tangible step that lawyers and judges can take to address the cultural and political divisions in our country. While some of the steps would take much political capital to institute (a non-partisan nominating commission for federal judges and justices), others are simple in theory (be role models and civil, even when you disagree).

Given the hot button issues that the Court has to decide this year--guns, abortion, vaccine mandates, presidential privilege--we know that there will be ample opportunity to practice some of the steps outlined by Tony and the authors of the special issue. I hope we as lawyers (and judges for our judicial readership) take seriously our responsibility to serve as role models for our communities.

Happy New Year!

January 3, 2022 in Appellate Advocacy, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, November 28, 2021

Guest Post: Drug Courts: A Well-Intended but Misguided Approach to Treating Drug Addiction

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.[1] 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. 

 

[1] 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 

November 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Tuesday, November 23, 2021

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

November 23, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, September 9, 2021

Thursday's Rhaw Bar: The Objectives and Means of Brief Writing:  Who Makes the Rhetorical Choices?  Does it Matter?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

This semester, I’m teaching Professional Responsibility to about 145 second-year law students.  We are on the topic of how the ethics rules allocate decision-making between lawyers and clients.   The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules.  Model Rule 1.2 (a) and Comment 5 provide that

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.

Objectives, Means & The Appellate Brief

Applying this rule to appellate lawyers writing briefs seems straightforward.  When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor.  An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle.  But generally, the client’s objective is to win on appeal.)  Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs.   In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective.  If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.

So, we might conclude that content of the brief is almost always the means and not the objective of representation.  In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art.  (I wrote about this concept of rhetoric as productive art last month.)  If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide.  Maybe consultation is required under the ethical rule, but nothing more.  (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)

But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief?  Maybe, maybe not.   Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal.  Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.

Raising Issues on Appeal:  The Supreme Court’s View in Jones v. Barnes

In 1976, a New York state jury convicted David Barnes of robbery and assault.  Michael Melinger was assigned to represent Barnes on appeal.  From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal.  Barnes also enclosed his own pro se brief.

Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.

In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s.  But Melinger also filed with the appeals court Barnes’s pro se brief.  Melinger lost the appeal.

In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.

This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”

The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion.  Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow[] out weaker arguments on appeal and focus on  . . . at most a few key issues.”  A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal,  and the lawyer should be the one to choose which of the “few major points” should be raised.  The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that  . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”

In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.” 

In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.”  But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”

Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment.  At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly,  the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice.  Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.

Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff.  Brennan said:  “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.]  If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.

Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs

So, what then, do we have here? 

Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives.  The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible.  Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.

The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants:  constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so.  (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result.  The ethics, then, are perhaps not so clear.) For civil appellate lawyers,  on the other hand, the implications of Jones are indirect but interesting.  The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.

            Is brief writing a mean or an objective?

On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief.  It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives.  Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade. 

But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means.  One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation.  In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important.  Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen.  Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.

            Are legal issues created or identified?

Another question Jones raises is the nature of “issue identification” as a rhetorical  (i.e., persuasive) act.  That is, do lawyers create issues for argument or do they find them?  In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger.  But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.

But, on the other hand, even issue identification is a rhetorical act.  Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs.  Artistic proofs, Aristotle said, are created by the rhetor.  An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data.  So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)

            Which rhetorical choices are means? Which ones are objectives?

Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which?   For example, an appellate brief should have a theme.  If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean?  How about metaphors?  How about references to history or popular culture that help make a point?  All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client?  Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?

            Does the appellate lawyer’s professional expertise in legal rhetoric matter?

And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important?  Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer.  Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing.  If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases?  If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter?  And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.

Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law.  Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised.  And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair.  This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.

That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices.  In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.

What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

September 9, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, September 7, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part V - Point Heading, Summaries, and Transitions

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.

Do provide appropriate signposts:

  • Do consider using headings and summaries.
  • Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.

The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next

1.    Point headings make our writing better.

Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.

A.    Point headings are topic sentences.

Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.

B.    Point headings should be full sentences.

Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better

                1.    Strict Scrutiny.

                2.    The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.

The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.

C.    Point heading should look like sentences.

Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.

D.    Point headings are not just for the argument section.

Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:

               1.    In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.

The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.

E.    Point headings serve as a check on your analysis.

If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.

F.    Good point headings start with a good outline.

The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.

G.    You should include point headings in your Table of Contents.

Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:

Example 1:

TOC - Bad

Example 2:

TOC - Good

Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.

2.    Summaries make our writing better.

Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.

After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.

3.    Transitions make your writing easier to follow.

A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.

Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (1)

Saturday, August 21, 2021

Social Media, State Action, and the First Amendment

In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.

If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.  

That has to change – now.

For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.

1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in                            content-based discrimination.

A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees.[1] The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures.[2] The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad  a state actor for this purpose.[3] Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.[4]

Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint.  As one commentator explains:

Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.[5]

As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”[6]  

Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.”[7] And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.

2.    Social media is the new public forum and the modern-day marketplace of ideas.

Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.

Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.

By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.

3.    A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.

Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule.  By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.

It encourages groupthink.

It discourages critical analysis of public policy issues.

Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor.  Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.[8]

Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors. 

***

The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.

Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.  

 

[1] 489 U.S. 602 (1990)

[2] See id.

[3] See id.

[4] See id.

[5] Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).

[6] Id.

[7] Id.

[8] David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at:    In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).

August 21, 2021 in Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (1)

Tuesday, July 27, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part IV

Professionalism in Legal Writing – Dos & Don’ts, Part IV

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.

Do adopt a clear and persuasive style:

  • Do put material facts in context.

The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.

Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:

The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).[2]

The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.

  • Do write in a professional and dignified manner.

Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.

I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.

  • Do put citations at the end of a sentence.

We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their[3] job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.

  • Do use pinpoint citations when they would be helpful.

They’re always helpful.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf

[3] Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/

July 27, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 29, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part III

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the third post in the series.

Do present an honest, accurate position:

  • Do include all relevant facts.

Appellate counsel must provide the court all the facts that are relevant to the issues raised in the appeal—yes, even the bad facts. Of course, we want to use word choice, sentence structure, and other techniques to deemphasize the facts that are unfavorable to our client and highlight those that are favorable. And while appellant’s counsel might be tempted to save those “bad” facts for a reply brief—don’t. First, we have an ethical obligation to provide the court all of the relevant facts. Second, it is better to present those “bad” facts first and in the way that is best for our client than to have opposing counsel bring them out first. Finally, disclosing the “bad” facts may enhance our credibility with the court.

  • Do cite the record accurately.

The Federal Rules of Appellate Procedure require the appellant’s brief to contain “a concise statement of the case setting out the facts relevant to the issues submitted for review . . . with appropriate references to the record (see Rule 28(e).”[2] Rule 28(e) provides:

References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:

Answer p. 7;

Motion for Judgment p. 2;

Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.[3]

Accurate record cites are important. They allow the court to confirm the accuracy of our representation of the facts, which again, allows us to build credibility with the court. Accurate record cites also allow the court to confirm that we preserved for appeal the issues we raise. Failure to include record cites may result in sanctions.[4]

  • Do disclose relevant authority, including adverse controlling authority.

Of course, we’re going to disclose relevant authority that supports our arguments. But what do we do about unfavorable authority that doesn’t control? (We’ll discuss controlling adverse authority in a minute.) If our opponent is likely to cite the unfavorable authority, or the court is likely to discover it, then I think the best approach is to disclose it and find a way to distinguish it. Just as with “bad” facts, disclosing adverse authority allows us to shape how the court views that authority.

We have an ethical duty to disclose adverse controlling authority. For example, the Model Rules of Professional Conduct provide, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”[5]

Counsel ignored controlling precedent in Gonzalez-Servin v. Ford Motor Co.,[6] which led to an interesting set of photographs in the Federal Reporter. After noting counsels’ failure to disclose controlling adverse authority, the court wrote:

The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.”[7]

The court then included these images in its opinion:

Ostrich

Lawyer

  • Do update all cited authorities and exclude any reversed or overruled cases.

Modern research tools make “Shepardizing” authorities a relatively simple task—far less laborious than for those of us who learned using books. But, we can’t just rely on the flags or signals that appear on your screen. We must read the authorities to ensure the flag or signal is accurate for the point upon which we wanted to rely.

An honest, accurate writing style builds credibility and makes our reader’s job easier.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] Fed. R. App. P. 28(a)(6).

[3] Fed. R. App. P. 28(e).

[4] E.g. Dennis v. Intl. Paper Co., 58 F.3d 636 (5th Cir. 1995) (“Dennis's brief does not comply with this rule. We are satisfied, based upon the evident carelessness in which Dennis's attorney has presented this appeal and its obvious deficiency on the merits, that Dennis's attorney has persisted in prosecuting a meritless appeal in contravention of § 1927. We find, therefore, that some measure of sanctions is appropriate.”); Plattenburg v. Allstate Ins. Co., 918 F.2d 562, 564 (5th Cir. 1990) (“This brief also fails to make even one citation to the record where relevant . . . .”)

[5] ABA Model Rule 3.3(a)(2).

[6]  662 F.3d 931 (7th Cir. 2011).

[7] Id. at 934, quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).

June 29, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, May 15, 2021

Using Inclusive Language As Allyship

While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship.  Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website.  See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).  

Reardon aptly concludes:  “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.”  Id.  As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.”  Id.

As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively.  In so doing, we can also use our privilege to serve as allies for underrepresented groups. 

How do we combine communication with allyship?  Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.

Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful.  Id.  Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.”  Reardon, Inclusive Language Is Allyship.  

We can also connect our language to allyship with a full understanding of what being an ally can entail.  As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society."  Samantha-Rae Dickenson, What Is Allyship?  (Nat’l Inst. of Health Jan. 28, 2021).  “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.”  Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).

As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.” 

I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others.  If you are interested in seeing more of the 2Civility website and programs, you can subscribe herefor the Commission’s weekly newsletter.

May 15, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, April 17, 2021

Lawyer Who Protested Trial Court’s Interlocutory Ruling, Instead of Filing a Writ or Waiting for Appeal, Agrees to Public Reprimand & Judge’s “Bart Simpson” Punishment

On April 9, 2021, the Board of Professional Conduct of the Ohio Supreme Court recommended the court accept an attorney’s agreement to a public reprimand.  See Order (Apr. 9, 2021) http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=901849.pdf.  As Debra Cassens Weiss explained for the ABA Journal, the attorney, Anthony Baker, also agreed the trial judge’s “well-publicized and unusual punishment” was proper.  Debra Cassens Weiss, Lawyer deserves reprimand for courtroom protest that led to 'Bart Simpson-esque' punishment, ethics board says ABA Journal (Apr. 14, 2021).    

Baker represented a criminal defendant in the Cuyahoga County, Ohio Court of Common Pleas, before Judge Nancy Fuerst.  See https://www.cleveland.com/court-justice/2020/02/judge-doles-out-bart-simpson-esque-punishment-to-lawyer-held-in-contempt-for-acting-out-at-trial-in-cleveland.html.  The state charged defendant with felonious assault and domestic violence, and Baker filed a timely notice of defendant’s intent to rely on a claim of self-defense.  Order at 1-2.  The parties tried the case to a jury, and at the close of evidence, Baker requested a self-defense jury instruction.  After hearing argument from counsel, Judge Fuerst denied the jury instruction request.  Id. at 2.

Baker then staged what the parties before the Board called a “protest,” making “repeated efforts to stop the trial from proceeding.”  Id.; Weiss, ABA Journal at 2.  Judge Fuerst ordered Baker “to sit at the defense table and be quiet,” but while the judge was instructing the jury, “Baker left the defense table and stood behind a television stand.”  Order at 2.  Baker admitted to the Board:  “’I moved away from the table so it was clear I'm not participating.’"  Id.  Judge Fuerst then dismissed the jury for a lunch break and documented Baker’s conduct for the record.  When trial resumed, the jury returned a guilty verdict for the lesser offense of aggravated assault and domestic violence, and defendant appealed.  Id.    

In a February, 2021 post-trial proceeding, the judge found Baker guilty of contempt and fined him $500.  Judge Fuerst also ordered what Cleveland.com called a “Bart Simpson-esque dose of punishment” by requiring Baker to hand-write 25 times each:

  • I will not engage in conduct that is prejudicial to the administration of justice or in any other conduct that adversely reflects on my fitness to practice law.
  • I shall not engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.

Baker immediately complied with Judge Fuerst's order and paid the $500 fine.  In fact, Cleveland.com published photos of Baker sitting at counsel table and writing out his Bart Simpson-style phrases as well as the first page of his phrases. 

Baker also “admitted to the inappropriate nature of his conduct and to deserving the contempt citation.”  Order at 3.  Baker told the ABA Journal he was “’discourteous,’ and that ‘the judge was right in the discipline she gave.’”  Weiss, ABA Journal at 2.  “’As I’ve maintained throughout, what I did in the courtroom was not justified,’” Baker told the ABA Journal.  But Baker also explained he “didn’t engage in any kind of outbursts, and the judge noted that [his] protest did not create a circus atmosphere.”  Id. 

Based on media reports of the sanctions, the Cleveland Metropolitan Bar Association, as Relator, initiated a proceeding against Baker with the Ohio Supreme Court.  Id.  Baker and the Bar Association agreed to an additional sanction of a public reprimand, noting Baker immediately complied with the trial court’s sanctions order and admitted to the inappropriate nature of his conduct.  An ethics hearing panel accepted the public reprimand after finding additional mitigating factors, including the “highly public nature” of the contempt proceedings against Baker, the lack of prior discipline against him, and his cooperative attitude in the ethics proceedings.  Order at 3.   

Judge Fuerst’s punishments—and the Ohio bar sanction—seem to have succeeded where Bart Simpson’s teacher’s punishment failed.  Nonetheless, the real answer here was a properly-perfected appeal, or an interlocutory device like a writ (in jurisdictions allowing writs).  As Baker’s client’s appeal proceeds, it will be interesting to see if the appeals court finds the failure to instruct on self-defense as troubling as Baker did. 

April 17, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Sunday, April 11, 2021

Is Georgia’s New Voter Identification Law “Jim Crow on Steroids?”

Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.[1]

Almost immediately, critics claimed that Georgia’s law was racist.[2] Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.

Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”[3]

And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”[4]

But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.

First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number.[5] Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters.[6] Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.

Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays.[7] Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.

Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed.[8] The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.

Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box.[9] However, the law permits poll workers to create self-service areas where voters can hydrate.[10] And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.

Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election.[11] Again, the racist aspect of this provision is not immediately apparent.

Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.[12]

The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. [13]

Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout,[14] can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.[15]

Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law.  In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”

Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.

 

[1] See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News

[2] See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)

[3] See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)

[4] Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)

[5] See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News

[6] See id.

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See id.

[14] See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox

[15] See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial

April 11, 2021 in Appellate Practice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (1)

Saturday, March 20, 2021

Advice for First-Year Law Students

Law school can be a stressful experience, particularly in the first year. Indeed, during the first year, a significant amount of stress results from the uncertainty regarding law school (e.g., not knowing how to study effectively or how to prioritize tasks) and the pressure to perform well in your courses. The tips below will help to reduce the uncertainty, relieve the pressure, and ensure that your transition to and performance in law school will be successful.

1.    Learn the Rule of Law and Do Not Brief Cases

As a law student – and as a lawyer – your primary responsibility is to know the relevant rules of law governing a particular legal issue and apply those rules to the facts of your case. Thus, from day one in law school, when reading cases, you should focus primarily on extracting the relevant rule of law from each case. For example, in New York Times v. Sullivan, the relevant rule of law is that to succeed in a defamation action, a public figure must show that an alleged defamatory statement was made with actual malice, namely, with knowledge of the statement’s falsity or with reckless disregard for its truth. You need not – and should not – focus on memorizing the facts of the case or the reasoning underlying the court’s decision, or on the concurring or dissenting opinions. Simply identify the rule of law because on your exams and in law practice, your primary responsibility will be to apply that rule (and precedent) to the facts of your client’s case.

As a corollary, do not brief your assigned cases (i.e., do not summarize the facts, procedural history, legal question, reasoning, and holding, or summarize the reasoning underlying the concurring and dissenting opinions, if any). This will require you to spend countless hours on aspects of cases that will neither be tested on the final examination nor improve your ability to apply the rule of law to a hypothetical fact pattern. Thus, just extract the rule of law and move on to the next case.

2.    Use Commercial Outlines

Sometimes, particularly for first-year law students, it can be difficult to identify the rule of law in a specific case. Indeed, in your first-year courses, for each legal topic, such as personal jurisdiction, you will often read many cases that track the evolution and development of a specific legal rule. Your focus should be to identify the current and governing legal rule because that is the rule you will be required to apply to a hypothetical fact pattern on your exam. To assist you in doing so, commercial outlines, such as Emanuel Law Outlines, are an invaluable resource. These outlines provide you with the current rules of law for each subject that you are studying (e.g., criminal law, civil procedure, torts, contracts) and for every legal topic within that subject. By helping you to quickly identify the relevant rules of law, commercial outcomes allow you to begin – early in each semester – the critical task of preparing for the final exam, which you do by taking practice exams.

3.    Take Practice Exams Early and Often – Under Timed Conditions

One of the best ways to excel in law school is to take practice exams, which your professor may make available to you or which you can find on the internet. Taking practice exams enables you to gain experience in, among other things, applying the relevant rules of law to hypothetical fact patterns, addressing counterarguments, and ensuring that your writing is well organized and follows the “IRAC” or “CRAC” structure (i.e., state your conclusion first, followed by a summary of the relevant rules of law, an analysis in which you apply those rules to the facts, and a conclusion).  Taking several practice exams – under timed conditions – will prepare you effectively for the final (or midterm) examination and maximize your likelihood of obtaining an excellent grade.

4.    Purchase the LEEWS Essay Exam Writing System

Just as commercial outlines will assist you in identifying the relevant rules of law, the LEEWS Essay Exam Writing System, which can be found at https://leews.com, will help you to perform extremely well on your exams. The LEEWS system teaches you, among other things, how to organize and structure your exam answer, how to identify legal issues in hypothetical fact patterns, how to address counterarguments, and how to distinguish relevant from irrelevant facts. LEEWS has been used by thousands of law students and is among the best resources available to maximize your performance in law school.

5.    Your Research and Writing Skills Are Essential to Your Success as a Lawyer

Excellent research and writing skills – particularly persuasive writing skills – are essential to good lawyering. Thus, during your three years of law school, focus on mastering your research and writing skills, including when drafting real-world documents such as complaints, motions, and trial and appellate briefs. If you cannot write effectively and persuasively, you will struggle to succeed in the legal profession.

6.    Develop Your ‘Soft Skills’

You can be the smartest and most talented law student in your law school, but if you’re a jerk, you won’t succeed in the legal profession. Being an excellent lawyer is not simply about knowing how to write persuasively and argue effectively. Rather, excellent lawyers know, among other things, how to cooperate and collaborate well with others, listen actively, accept constructive criticism, demonstrate humility, honesty, and decency, and learn from failure. Simply put, your personality influences how others perceive you – and impacts your likelihood of succeeding in the profession. So, don’t be a jerk. Don’t have an ego. Don’t gossip. Be someone who others want to work with – and who are happy when you walk into the office every day.

7.    Take Care of Your Physical and Mental Health and Remember that Mindset is Everything

Law school is stressful, but the legal profession is infinitely more stressful. It’s particularly important during law school and in your life to take care of your physical and mental health. Regardless of your workload, take time each day or several days a week to exercise. Eat healthy food. Do things that make you happy. And make sure to address any mental health or other issues that may arise. If, for example, you are struggling with depression or anxiety, consult a psychiatrist or a psychologist. If you are struggling with a substance abuse problem, seek help. Don’t ignore it or feel shame. Taking care of your physical and mental health in law school will help you to develop the habits and coping skills necessary to succeed in the legal profession.

Most importantly, remember that mindset is everything. All of us encounter adversity and unexpected challenges in life. The key to overcoming them is you. If you have a strong mindset and an empowering thought process, you can – and will – cope effectively with adversity. And remember that your choices, not your circumstances, determine your destiny.

8.    At the End of the Day, Only Happiness Matters

Don’t let law school or the legal profession consume you. Don’t judge your worth on whether you received an A in Civil Procedure or passed the bar exam on the first try. Don’t be affected by what others say about you. Don’t associate with toxic people. Ultimately, what matters is your happiness. So, put yourself first and do what makes you happy. Pursue your passions, whether in law or elsewhere. And remember that there’s more to life than the law.

9.    Don’t Just Help Yourself – Help Others

Going to law school and becoming a lawyer provides you with a tremendous opportunity to improve the lives of other people and to fight for a fair and more just society. So, remember that your career isn’t just about your success – it’s about whether you used your talents to make a difference in the world.

March 20, 2021 in Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)