Appellate Advocacy Blog

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

Thursday, November 15, 2018

Jones Day Means Pay Day for Supreme Court Law Clerks

It's no surprise that Supreme Court law clerks searching for a job in private practice will be faced with some tough choices, but determining which firm is offering the highest signing bonuses is not one of them. Jones Day leads the way this year in offering a signing bonus of $400,000. That is nearly double the salaries of the Supreme Court Justices for whom they clerked. And that does not include salary.

It's a given that any firm would be more than happy to hire a Supreme Court clerk. They have already proven their mettle and intelligence, so there is little risk as to whether they can handle private practice. But the opportunity to use the Supreme Court as a pre-screening testing ground for the next newbie associate is a privilege only a few firms can afford.

Michael Scanlon, hiring partner at Gibson, Dunn & Crutcher, which recruited two Supreme Court clerks from last term, said “the market appears to have settled” at $400,000. He attributes the escalating bonus to the fact that “the competition is great” for the small number of talented attorneys—38 or so—the Supreme Court turns out every year.

It's something to think about that thirty years ago the signing bonuses were in the neighborhood of $10,000, and even in 2015, they were around $300,000. Any way we look at it, Supreme Court clerking has been a bountiful niche to exploit. Supreme Court clerks go on to the most prestigious jobs in private practice, government, and many return to the Supreme Court - as justices. A majority of the Court now contains former Supreme Court clerks (Roberts, Breyer, Kagan, Gorsuch, and Kavanaugh). While the promise of exclusive access to desirable jobs and an extremely large signing bonus are attractive to former clerks, some people don't think it's a good thing.

“It’s become absurd,” said Todd Peppers, who has written books about Supreme Court clerks. “These firms can no longer credibly argue that they are compensating these former clerks for the additional education and training obtained during their Supreme Court clerkships. Yes, these former clerks are very smart. That being said, this is about access and insight into the individual chambers.”

U.C. Hastings College of the Law professor Rory Little, himself a former clerk, said, “If I were a clerk today and knew that I could get an extra almost half-million dollars, I would feel very careful about the firms’ Supreme Court cases while clerking. Seriously, an ethics expert needs to look at this carefully, under the current ethics rules and concerns we adopt for lawyers and judges in other situations. All 37 clerks or more feel that same ‘tug,’ even if it is implicit or unconscious.”

“When the numbers get so high—in terms of the bonus itself and the numbers of hires going to one firm—it unavoidably raises concerns about what is being purchased and the meaning of public service,” Harvard Law School professor Richard Lazarus said in 2015. Lazarus, reached this week, said he stands by those remarks, adding that “a vast majority” of the Jones Day hires are likely to leave the firm in a few years. “Jones Day is paying a lot of money for a photograph,” he said.

It's a point that might have been overlooked if these signing bonuses weren't so large - does the enormity of the sum start to create ethical problems for these lawyers while they are at the Court or for the perception of our justice system? 

 

 

November 15, 2018 in Legal Ethics, Legal Profession | Permalink | Comments (2)

Thursday, October 18, 2018

High Level Judicial Feud in Arkansas

Last year, on a Friday in April, Judge Wendell Griffen participated in an anti-death penalty rally on the steps of the Arkansas capital building and a prayer vigil in front of the governor's mansion. Later the same day, he issued a temporary restraining order to a pharmaceutical company requesting that the state of Arkansas return the drug the state used in carrying out capital punishment. Moving quickly, on Saturday, the Supreme Court of Arkansas heard an appeal of the TRO, reversed the order, and by Monday had directed the lower court to recuse Judge Griffen from the docket of all death penalty cases.

The Arkansas Supreme Court further referred the judge to the judicial discipline commission to determine if he had violated the code of judicial conduct when he attended the rally, a prayer vigil, and after he posted anti-death penalty commentary on his blog. The court asserted that Judge Griffen should be investigated for judicial misconduct because his prior words and actions tended to show he had a predetermined outcome for death penalty cases. 

Shortly thereafter, Judge Griffen filed suit - against the Arkansas Supreme Court justices who issued these orders claiming due process violations. His suit was subsequently dismissed by the Eighth Circuit. But, Judge Griffen filed additional ethics complaints against the justices. Last month the disciplinary commission found probable cause that six of the seven justices violated the canons of judicial ethics. The commission stated that the justices acted arbitrarily and capriciously by ordering recusal and by not giving Judge Griffen enough time to respond. 

This week, five justices filed a petition to dismiss the charges. They declared that the disciplinary commission did not have jurisdiction over these claims since the orders to recuse Judge Griffen were not fraudulent, in bad faith, or because of a corrupt motive. The Arkansas Supreme Court has promised to recuse itself in hearing any of these charges.

This case raises many questions of judicial ethics. Should judges curtail their First Amendment activities if they could be construed as bias on future rulings? Is attending a political rally considered a demonstration of a bias? What actions can courts take to discipline their own judges? Is removing a judge from a particular docket considered a due process violation (8th Circuit said no)? This state court situation may seem removed from the national public discourse, but the answers to these questions will be important for a judiciary that is being placed more into the spotlight than ever before.

October 18, 2018 in Legal Ethics | Permalink | Comments (0)

Thursday, October 4, 2018

California Overhauls Its Rules of Ethics

New ethics rules for California lawyers will go into effect on November 1. This is the largest reform California has undertaken in 29 years. It brings the state rules in line with the ABA Model Rules.

Driving forces behind the rules were the interest in increased consumer protection and a desire for consistency nationwide. A total of 69 rules will be added or amended. Among the changes to the new rules are: 

  • A rule forbidding attorney-client sex unless there was a preexisting relationship, which broadens lawyers’ restrictions.
  • Changes that make conflict of interests rules broader.
  • No rule on lawyers’ duties when advising clients with diminished capacities. This was requested by the trusts and estates section of the California Lawyers Association (the nonprofit trade association recently spun off from the state bar), but the California Supreme Court did not approve it.
  • The duties of a lawyer when advising clients on breaking the law - an attorney may not counsel to engage in or assist a client on committing a crime (Rule 1.2.1).
  • Commentary that provides guidance to attorneys advising clients on federal and trial law conflicts - likely needed for advising clients in the legalized marijuana industry.
  • A rule that prohibits harassment, discrimination, and retaliation by attorneys, or permits any of the forgoing. This rule gives the responsibility to lawyers to police the behaviors of lawyers and personnel in their own firm. This allows the state Bar to open an independent investigation without a finding by any outside agency. This rule was very controversial, as it was when the ABA adopted it. To date it remains under scrutiny in many states with twenty-one adopting it or having one similar, and nine declining. Fourteen other states are studying whether to adopt it. (Rule 8.4.1).

October 4, 2018 in Legal Ethics | Permalink | Comments (0)

Thursday, September 20, 2018

Must a judge write her own orders?

A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, "I didn't write this thing." A review of Judge Edward Jacobson's rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct - it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson's cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge's chambers is primarily drafted by a lawyer involved in the litigation? Isn't a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

At first glance, having the lawyer in the case write the order seems to undermine the ethics of an unbiased system. Each lawyer will have an interest in writing an order most favorable for their desired outcome, and in fact these orders are frequently (always?) written by the prevailing side in the dispute. A prevailing (and unethical) lawyer may try to sneak in some traps or pitfalls for the other side, but it should at least be assumed that the order will include language that will advantage the winner. Without review by the adversary, an order like this does present ethical problems and the process should not be condoned.

However, if we agree that an efficient judicious process carries weight, it may be appropriate for the practice of lawyer-written orders to continue with certain conditions. First, opposing counsel must be fully aware of and have the opportunity to participate in the process and make objections. Second, the judge who will sign the order must use due diligence and use her position of neutrality to evaluate every order for accuracy and legality - even if no issues have been raised by the side who did not write the order. Finally, the judge must be prepared to take ownership of the order and at no time try to pass off responsibility for the effect of a poorly written order. 

One final admonishment is necessary too for the lawyers involved in these situations: Always consult opposing counsel before submitting a proposed order to the court. This will save time in the case that the order is contested, and more importantly, this will have the effect of bolstering collegially and trust in the bar. Even if the judge doesn't direct a lawyer to share the proposed order with the other side, a lawyer should remember her obligations to a fairly administered justice system. That includes giving the other side a chance to be informed and an opportunity to be heard in the final decision.

September 20, 2018 in Legal Ethics | Permalink | Comments (1)

Thursday, June 14, 2018

What is so hard about attribution?

A Chicago attorney may be in trouble for plagiarism. The abrupt writing style change in the middle of his brief was easily Googled and more than 1,000 words were discovered to be lifted from two separate sources - a law bulletin and a primer series. 

Plagiarism of this sort is not hard for the reader to detect. For law students, it means an honor code violation, and for licensed attorneys it means possible ethical violations. There is little room to argue that it was done unknowingly, and at the least, this type of behavior is negligent. Using over 1,000 words though, it is a stretch to believe that laziness and arrogance weren't also involved.

Most people first encounter the concept of plagiarism in an academic setting, where they are taught that plagiarism consists of using the words or ideas of another without attribution. For example, the Modern Language Association defines plagiarism thus:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism.... [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics.

“Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking."

In academic writing, a premium is put on finding and communicating ideas that have not been discovered before. Law students must write their law review articles on a subject not yet preempted by another author. They must find something unique to say about a topic. Practicing attorneys, on the other hand, have a different focus. Most often they need to use another's words in order to support their own argument. It is the existence of another's idea that makes their case stronger. So it remains baffling why a practicing attorney would not give attribution to his source. (Frequently, it appears as if attribution is given because citations are copied and paste along with the text - but another has arranged these words in a particular, unique way, and that must be credited).

This behavior is further puzzling when it is done without much effort to to hide the offense. Some work went into finding the excerpt, and shoving it into the right spot in the document, so why not revise the words and the style to match the rest? Does this plagiarizer think he can so blatantly submit a patchwork document and it not be noticed? Not likely, and not ethical or professional.

In the case of the Chicago attorney referenced here, he charges $400.00 per hour. Apparently, copy and paste is the best his client can expect for that pittance of a fee. 

June 14, 2018 in Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, April 23, 2018

Week 3--Top Tips From Appellate Judges

For the past few weeks I have been blogging about appellate brief-writing tips from appellate judges, based on my work on the third edition of Winning on Appeal.  You can read the first two posts here and here.

The tip for this week is to be professional in your writing.  There is much that could be said on the topic of professionalism in brief-writing.  I am going to focus on two points--accuracy and civility.

As I discussed in week 1, the most common complaint that judges have about briefs is that they are too long.  One of the other most common complaints that we heard from judges was about accuracy.  They bemoaned lawyers misstating the law and the record, and mentioned how such tactics destroyed a brief-writer's credibility with the court.  Look at this quote from an appellate judge: “To me, the worst thing that a lawyer can do in a brief is to cite cases for proposition that they simply do not support or to falsely state the record.  When I see that, I conclude that I cannot rely on anything in the brief.”

Lack of accuracy can raise ethical issues.  The ABA Model Rules of Professional Conduct state that a "lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."  Sadly, many misstatements are the result of laziness--failure to fully read cases and failure to fully master the record.  Don't be the lawyer who falls into this trap--take time to adequately prepare your briefs, and be scrupulous about the record!

The other professionalism issue is civility.  Sadly, many lawyers hurt their credibility by attacking opposing counsel or the judge below in their briefs (and oral arguments).  With respect to attacking the judge below, this never made any sense to me.  In the federal system (and, from what I have seen, in many state systems), there is a decent amount of interaction between the different levels of judges.  They are all fairly civil to each other, and most of the judges on the higher courts started off on the trial or intermediate appellate bench.  Starting off your brief by personally attacking the judge below, who is likely a friend of at least of few of the appellate judges deciding your case, seems like really poor strategy.  

As one appellate judge put it, "[e]ngaging in personal attacks on parties, lawyers, or judges is unacceptable."  You can point out flaws in an argument or opinion with stooping to the level of personal attacks.  It will make your brief stronger and more persuasive.

April 23, 2018 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

**********

It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Thursday, January 4, 2018

Thinking Thursdays: New Science on the Ability of Facts to Debunk Myths

 

Extra! Extra! In a Post-Facts World, Facts Still Matter!

Yesterday, Slate published an important cover story written by Daniel Engber, LOL, Something Matters, in which he assures readers that facts still have power. In it, he outlines and reviews some of the scientific studies, old and new, that have analyzed the effects of presenting facts to counter false beliefs. There’s good news in the most recent studies. Facts do have an effect on debunking false information or myths.

The new science supporting the importance of factual persuasion, ironically has its own factual persuading to do. People who know a little bit about the science of managing adverse material typically rely on a small sample-size study conducted by Brendan Nyhan and Jason Reifler, When Corrections Fail: The Persistence of Political Misperceptions.[1] Two years prior to its actualy publication, the study was written up in mass-consumption media as part of the 2008 election fever. The stories tended to make dire predictions that fact-checking news stories would end up rallying people to become more firmly entrenched in their beliefs in the falsehoods. This phenomenon was termed the “backfire” or “boomerang” effect. Oxford Dictionaries selected “post-facts” as the 2016 word of the year, based in part on these studies.

Graduate students at different universities became interested in the Nyhan-Riefler paper, and attempted to replicate them, to no avail. The new studies were 103 times larger than the studies done by Nyhan and Riefler. One set of graduate students used over 10,000 test-subjects and another graduate student group used almost 4,000. The data tended to show the opposite: none of the conditions resulted in any evidence that people adhered to their views when presented with facts that showed the opposite was true. Rather, the studies showed that the test-subjects were more likely to adapt their views to better fit the facts.  

Rather than challenge the new science, essentially debunking theirs, the original scientists, Nyhan and Riefler collaborated with one of the other sets of researchers to conduct new studies. The foursome posted a 60-page article in the summer of 2017, The Effect of Information on Factual Beliefs and Candidate Favorability, [2]  concluding that people are willing to update factual beliefs when presented with “counter-attitudinal informaton.” However, they further concluded that updated factual beliefs might have only minimal effects on attitudes towards a political candidate. The very creators of the backfire/boomerang effect have questioned—some might say debunked—their own previous work. And the Slate article has set out to help publicize the new studies. Facts still matter.

So, what does the appellate lawyer take from all of this? Well, two things. First: the new studies give credence to the idea that the better way to manage adverse material is to disclose and refute it, rather than ignore it. Kathy Stanchi, a Professor of Law at Temple University has advised this in her germinal article, Playing With Fire: The Science of Confronting Adverse Material in Legal Advocacy.[3]  As cited in Professor Stanchi’s article, other scientists have suggested ways to confront adverse material—to immediately refute it when mentioned.[4]

Second, the wise appellate lawyer, turns to one of the resources that Daniel Engber cited in the Slate article, John Cook and Stephan Lewandowsky, The Debunking Handbook, available for free download (7 pages). The handbook offers an “Anatomy of an effective debunking” on page 6. The last of the advisory elements is to present information graphically, so I will end this blog post with a chart.

Elements, per handbook

Explanation in handbook

Blog Analysis

Core facts

Refute by emphasizing the key facts. This will create a gap in the knowledge of the audience—a hole where the falsities used to take up space

This isn’t said in the text of the handbook, but the examples do mention a need for the key facts to present as a cohesive, alternative narrative.

Explicit warnings

Before mentioning the myth or falsehood, provide textual or visual cues that upcoming information is false

In legal writing-ese, this advice suggests that the writer mention the myth only after presenting the true facts. That gives the truth the position of emphasis in a subsection or paragraph.

Alternative Explanation

Any gaps left by the debunking needs to be filled. Achieve this by providing an alternative causal explanation for why the myth is wrong (and perhaps why the falsities spread).

This isn’t said in the text of the handbook, but the examples do mention a need for alternative explanation to  present as a cohesive, alternative narrative. In other words, story persuades. Stories are organizational scaffolds that present information as cause à effect

Graphics

Core facts should be displayed graphically, if possible.

For lawyers, the legal reasoning may also be presented with infographics. But, not all infographics are useful infographics--some are merely decorative and others might be off-point. The writer must always balance the usefulness with the impact on persuasion. For more on this, see Steve Johansen and Ruth Anne Robbins, Art-icuating the Analysis: Systemizing the Decision to Use Visuals as Legal Reasoning, 20 Legal Writing 57 (2015).

[1] 32 Political Behavior, 303 (2010). The study used 130 undergraduate students at a Catholic university. These students were split among four different modules. Id. at 312.

[2] Brendan Nyhan, Ethan Porter, Jason Reifler, and Thomas Wood, Taking Corrections Literally but not Seriously? The Effect of Information on Factual Beliefs and Candidate Favorability (June 29, 2017), available on SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2995128 (last accessed January 3, 2018).

[3] 60 Rutgers L. Rev. 381 (2008).  

[4] Id. at 390–92.

 

January 4, 2018 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Wednesday, July 13, 2016

Is Justice Ginsburg wrong for voicing her opinion on Donald Trump?

This week Supreme Court Justice Ruth Bader Ginsburg drew criticism for her negative public remarks about Republican presidential nominee, Donald Trump. In three separate forums, Justice Ginsburg made remarks about not wanting Trump to become president and saying he has a big ego. The New York Times Editorial Board chastised Justice Ginsburg for speaking out and listed the instances:

In the New York Times: “I can’t imagine what the country would be — with Donald Trump as our president,” joking that if her husband were alive, he might have said, “It’s time for us to move to New Zealand.”

 

In an interview with the AP: “I don’t want to think about that possibility [a Trump victory], but if it should be, then everything is up for grabs.”

 

And with CNN: Trump was “a faker,” who “has no consistency about him.” In that interview, with CNN, she added: “He says whatever comes into his head at the moment. He really has an ego.”

Not at all unexpectedly, Donald Trump responded via Twitter by questioning Justice Ginsburg’s competence and ending with a curt command - "resign!"

Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot - resign!

Commenters have noted that Supreme Court justices are not held to the Code of Conduct as are other federal judges which states that judges should refrain from political activity. Judges should not "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office . . . ." But Justices are subject to 28 U.S. Code § 455 which requires a judge to disqualify himself in any proceeding "where his impartiality might reasonably be questioned." Further, a judge should disqualify himself if “he has a personal bias or prejudice concerning a party . . . .”

Even Justice Ginsburg supporters have agreed that statements like this do put her in a precarious position should a replay of Bush v. Gore become necessary in this election cycle, or for any number of President Trump policy contests that are likely to come before the Court, if the volume of challenges is anything like those President Obama has faced. Further, even under a President Clinton, Justice Ginsburg's decisions may be perceived to be biased in favor of Hillary. Either way, her opinions could draw even more criticisms based on bias, with the evidence being provided by Justice Ginsburg's own words.

Others see no problem with Justice Ginsburg remarks:

Former Ginsburg law clerk Lori Alvino McGill, partner at Wilkinson Walsh + Eskovitz in D.C., defended the justice’s remarks.

 

“The Justice is human like the rest of us, and an American citizen,” McGill said. “That she uttered out loud some of her personal fears about a potential Trump administration does not cast doubt on her ability to be impartial, should a hypothetical ‘Bush v. Gore’-type case arise and come to the court.”

 

McGill added, “Any case that comes to the court concerning Trump v. Clinton would not be a referendum on who is the better candidate. It would present a legal question for the court to decide, and I have no doubt that Justice Ginsburg would faithfully execute her duty to decide that question without regard to whether she would give Mr. Trump her vote.”

In theory, it is possible that a judge may hold political views and still provide a judgment in accordance with the law. But, as humans, we inevitably, and probably unfortunately, instantly look for bias in controversial opinions. Lately, it doesn't even seem that a person’s opinion may be considered without an immediate allegation of bias - a personal attack upon that person’s character. This phenomenon has contributed to an increasingly polarized political environment, so much so that productive discussions become more rare every day.

Certainly it is true that judges are human too and invariably will hold personal political opinions. However the accepted norm has been that judges will refrain from stating such opinions in an overtly public way in order to maintain the appearance of impartiality. Perhaps the appearance of impartiality is just a lie we have come to accept as the norm, even though we value impartiality itself. When we hear such a pointed statement come from such a prominent Supreme Court Justice, it is something unusual and may cause us to reconsider the norm. 

Would we be better off if our judges freely shared their political views? Would that be better for transparency within the judiciary or would it lead to greater distrust of the judicial system? What are the advantages or disadvantages of abandoning the long held tradition of judges refraining from entering the political arena? 

July 13, 2016 in Appellate Court Reform, Legal Ethics | Permalink | Comments (0)

Tuesday, September 15, 2015

Fifth Circuit Appellate Advocacy Seminar

Readers may find this of interest:

On October 5 and 6, 2015, the Bar Association of the Fifth Federal Circuit will host our Annual Appellate Advocacy Seminar in New Orleans. The cost is $100 for 9.75 hours of Continuing Legal Education, including both an hour of Professionalism and an hour of Ethics. Attend a two-hour writing workshop to hone your brief-writing skills, observe oral arguments and get practice tips from seasoned attorneys and sitting judges. This seminar is an ideal introduction to federal appellate practice, with specifics about Fifth Circuit procedures.  http://www.baffc.org
 

September 15, 2015 in Appellate Advocacy, Federal Appeals Courts, Legal Ethics | Permalink | Comments (0)

Tuesday, December 9, 2014

Random Assignment of Federal Appellate Cases and Panels

Allegations of non-random assignment of gay marriage cases by the Ninth Circuit were offered recently by gay marriage opponent, Coalition for the Protection of Marriage. This allegation is not new, dating back to California Prop 8 litigation in 2010.

Ninth Circuit Chief Judge Kozinski responded on the record regarding the recent allegation, though what, if anything, that adds is left as an exercise for the reader. For more detailed reading on the issue of judicial panel assignments, one might examine a pair of recent articles available on SSRN.

First, a new working paper on SSRN by Adam S. Chilton (Chicago) and Marin K. Levy (Duke) Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals. addresses the issue of circuit assignment practices across all circuits. The abstract ably summarizes the work:

A fundamental academic assumption about the federal courts of appeals is that the three-judge panels that hear cases have been randomly configured. Scores of scholarly articles have noted this “fact,” and it has been relied on heavily by empirical researchers. Even though there are practical reasons to doubt that judges would always be randomly assigned to panels, this assumption has never been tested. This Article fill this void by doing so.

Second, Margaret V. Sachs (Georgia) has a forthcoming article in the UC Davis Law Review, Superstar Judges as Entrepreneurs: The Untold Story of Fraud-On-The-Market, that discusses Judge Posner and Easterbrook's opinions on class certification in securities class actions. Sachs notes that the two judges dominated the development of the law on this issue in the circuit by retaining merits appeals of cases they agreed to hear as motions judges. Sachs examines how these two "superstar" judges were able to select these cases through a pecularity of the Seventh Circuit assignment process.

The Administrative Office of the U.S. Courts suggests that assigment is typically random but that assignment might be made based on substance or geographic considerations:

Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseloads and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.

December 9, 2014 in Appellate Justice, Appellate Procedure, Federal Appeals Courts, Legal Ethics | Permalink | Comments (1)

Wednesday, September 17, 2014

BP Counsel Fiddles With Line Spacing in Federal Filing

This is the kind of basic advocacy blunder that is hard to believe, but it's being reported that BP's counsel fiddled with the formatting to file an over-length brief without permission.While this happened in federal district court, it's a fundamental advocacy issue worth reporting here. In a filing related to the Deepwater Horizon oil rig spill in 2010, BP's counsel tried to slip one past Eastern District of Louisiana Judge Carl Barbier. He was not fooled or amused.

After noting that it had already allowed BP to file a brief ten pages longer than the usual twenty-five-page limit, the Court explained:

"BP’s counsel filed a brief that, at first blush, appeared just within the 35-page limit. A closer study reveals that BP’s counsel abused the page limit by reducing the line spacing to slightly less than double-spaced. As a result, BP exceeded the (already enlarged) page limit by roughly 6 pages. The Court should not have to waste its time policing such simple rules—particularly in a case as massive and complex as this. Counsel are expected to follow the Court’s orders both in letter and in spirit. The Court should not have to resort to imposing character limits, etc., to ensure compliance. Counsel’s tactic would not be appropriate for a college term paper. It certainly is not appropriate here. Any future briefs using similar tactics will be struck."

Judge Barbier was far more generous than I would have been. Still, even without a harsh penalty, this will make good material for my appellate advcocacy class lesson on ethos in a few weeks. For a company that wants to be viewed as one that follows the rules and cares about details, this kind of angle-shooting by its counsel seems counter-productive.

A former clerk for Judge Barbier, Alabama Law Professor Montré Carodine, reads between the lines to suggest: "The subtext seems to be Judge Barbier saying, 'Look, every time I give you an inch you take a mile, and I'm tired of it,'" (as quoted in the NPR piece on the matter). I'm not sure what evidence exists to show repeated offenses, but fiddling with the formatting after being allowed to increase your brief by 40% does seem to be the kind of presumptious greed Carodine's idiom suggests. 

I wonder how often this occurs. Does it slip past judges with any frequency? Is there any creditable explanation for changing the formating? Any one want to defend the practice?

 

Hat tip to reader Maryanne Heidemann

September 17, 2014 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (5)

Friday, May 23, 2014

Federal Appellate Judges' Financial Conflicts and Reporting

Almost a month ago, Legal Ethics Forum mentioned an AP story out of Washington about The Center for Public Integrity's conflict check on the federal appellate courts. CPI examined the last three years of financial disclosure reports of federal appellate judges and the federal appellate cases before each judge. The review found twenty-six cases involving sixteen judges where the a judge had a financial interest in one of the parties or in a law firm appearing before court. Such a small number of cases in the large volume of appeals suggests a reasonably functioning screening system, but even this small number of conflicts calls into question the outcomes in those cases and threatens the public perception of the judiciary as unbiased.

CPI notes that all sixteen judges have now informed the litigants in these cases of the conflict. Litigants whose cases are still pending have some chance at relief, recusal and perhaps a substitute judge added to their panel. Litigants whose cases are closed may have a tougher time of things. Those still in the window for en banc review may seek that rare remedy and getting the Supreme Court to review the cases seems even more remote.

Relatedly, our sister blog, the Civil Procedure and Federal Courts Blog, posted yesterday that the National Law Journal has issued a Special Report on Judicial Transparency and made available in digital format the 2012 disclosure statements of 257 federal appellate judges. Having this data publicly available increases the opportunity for the kind of conflict checking done by CPI as well as allowing for a scholarly or journalistic examination of judges' extra-judicial income. Of course, it also allows for the all-too-human poking our noses into other people's business, should anyone be interested in doing that.

 

 

May 23, 2014 in Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession | Permalink | Comments (0)

Friday, March 21, 2014

Not Prepared For Oral Argument? Go Anyway!

The show must go on.  This is the lesson that Illinois attorney Michael Joseph Finn learned.   He was accused and later admitted to faking an illness in order to get out of doing an oral argument before the 7th Circuit Court of Appeals.  

On the day in question, he alerted the court that he was sick and had vomited earlier that morning.  He later reiterated the story once questioned by the ethics board before finally admitting that he was simply unprepared to present that day.  This admission led to the Illinois Supreme Court issuing an order on March 14, 2014 suspending his license for 60 days.  He also received a $1,000 fine and was ordered to pay restitution of $5,000 to the client.  

The moral to the story:  be prepared.  If you are not prepared, timely request a continuance.  If it is too late to make such a request, do not fake an illness to avoid your responsibility to your client.  The better route is to pull and all-nighter preparing, show up and do your very best, and then vow that you will never put yourself in such a precarious situation again.

Hat tip to ABA Journal. 

March 21, 2014 in Appellate Advocacy, Legal Ethics, Oral Argument | Permalink | Comments (0)