Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Thursday, August 29, 2019
I recently attended a fantastic gathering of advocacy coaches, directors, and advisers, American's Second Annual Coaches Clinic. What a joy it was to spend time with a group of individuals dedicated to training students to be excellent advocates. And so, refreshed, I return to begin preparing my students to compete in moot court. And I bring insights about the psychology of judging. And while the focus was on competition judges, the psychology applies in daily practice. For instance, we discussed implicit and in some cases, explicit, biases that some competition judges may have regarding race or gender. These same judges practice law in our communities and serve as judges in our courts.
I want to ask how we can combat those biases, but I don't think that is the answer. Confrontation will not necessarily change the way a person thinks or feels, and as advocates, we are merely a representation of our client, so we have to consider the ramifications of taking a stance. But in certain circumstances standing up against indignities is absolutely required.
Unfortunately, we are raised in a civilized society. We don't expect anyone to be blatantly biased, and we are shocked when it happens. If we haven't thought about it beforehand, and planned what our reaction would be, we become paralyzed by that shock. As a coach, I have begun to consider the worst case scenario, and am trying to plan how and when I would step in. I talk to my students about bias and we discuss the how and when.
Where do you draw the line? Have you considered what you would do if a judge, competition or real, were to say something that exhibits explicit bias towards you, your client, or your team? Have you considered what you would do if a judge were to exhibit such bias to your opposing counsel or team, or to another person in the room?
Are judges becoming less ethical or are they being held more accountable? There's no way to tell with just anecdotal evidence, but the ethics of judges has been making more of a presence lately in legal headlines.
One family court judge in Pennsylvania has been accused of berating litigants, not giving proper notice to attorneys, handing out heavy-handed results, and failing to enter orders in a timely manner. She was transferred to the civil appeals division while the ethics complaints are pending.
An Ohio judge pleaded guilty to murdering his ex-wife! He had previously stepped down from the bench in 2015 after assaulting the same woman. He had also been a prosecutor, a congressional aide, and a state legislator. He served nine months in jail for the first assault, and was suspended indefinitely from the practice of law, however, the Ohio Supreme Court rejected disbarment at that time because the assault did not involve "dishonesty, abuse of his judicial office, premeditation or a pattern of bad behavior."
In a New Jersey courtroom, a judge let his bias get the best of him when he harangued a litigant about the part she was playing in a love triangle and called her paramour a "knucklehead." His ethics complaint centers around a lack of impartiality and impugning the integrity of the judiciary.
The federal courts are not immune from knuckleheaded moves either, and hitting the "reply all" button clearly falls into this category. A U.S. Court of Appeals judge in Washington, D.C., did just that when he received some information about a climate change seminar from a lower court judge. His reply scolded the district court judge for getting outside of his official duties and even alleged an ethics complaint of his own. For now, the circuit court judge has been removed from any review of the lower court judge's opinions.
Most of these examples of bad behavior are pretty extreme. Judges are human, and certainly some mistakes can and should be tolerated, but it seems like lately this type of behavior is becoming more common. At least it is not being accepted as the norm. This doesn't just highlight individual behavior; it reflects upon the whole justice system.
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Tuesday, April 30, 2019
In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.
Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.
There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.
My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.
The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.
The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.
Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:
If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.
Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.
Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.
In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.
As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.
(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).
Tuesday, April 16, 2019
Over the last several weeks there have been numerous articles about the "unprecedented" politicization of the United States Supreme Court. I have also seen several opinion pieces about growing frustration with the political leanings of the judiciary, and proposals to increase the number of seats on the high court to bypass a feared conservative bloc.
I am fortunate enough to be married to a lovely lady who is, among many other things, a college history professor. While we don't talk shop too often, I am familiar enough with our history to know that none of these complaints are new. Indeed, they say that those who do not know history are doomed to repeat it. So let's learn a bit of history, then, and gain a bit of insight from the past.
First, dissatisfaction with the judiciary is baked into the system. Alexis de Toqueville noted that “[t]here is almost no political question in the United States that is not resolved sooner or later into a judicial question.” Yet Tocqueville considered this a good thing: lawyers by their education and nature were naturally skeptical of change and conservative in nature, and thus provided our best brake against the “revolutionary spirit and unreflective passions of democracy.” Congress and the Executive provide the passion and funding and guidance that moves the State, and the judiciary makes sure that all this passion and money doesn't ruin anything of Constitutional importance.
This inherent conflict between the Supreme Court and the other branches of government has often resulted in moves to make the Supreme Court "more like us." The Constitution does not define the number of seats on the Supreme Court. Thus, the Supreme Court started with just six seats in 1789. It did not take long for this to invite political intervention. In 1801, President Adams and his outgoing Federalist congress passed a bill to restrict the court to five seats, attempting to limit the incoming President Jefferson from meddling with things. Jefferson and his new congress changed the seats back to six by repealing the act.
This tinkering continued. At first, there was the excuse that new circuits meant there was a need for new seats. So, in 1807, when a seventh circuit was added, Jefferson and his congress added a seventh seat to the Court as well. Andrew Jackson followed suit in 1837, adding two more seats to match. When a tenth circuit was added during the Civil War, a tenth seat was added.
After the Civil War, the seats were reduced, at first back to seven, and then to nine, by President Grant and his congress. This number has remained the norm until this day.
That doesn't mean things have gone smoothly. In fact, things were worse in the 1930's than they are now, and we almost wound up with 15 judges a result.
In the 1930's, FDR and his congress passed a number of new laws that were a part of what became known as the New Deal. The Supreme Court was the only thing stopping this change. Time and again, the Court balked at the fairly radical changes that were being implemented. Soon, ideological divisions were noted and mocked. There were four conservatives -- Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter -- that the pro-New Deal press began calling "the Four Horsemen." They were opposed by the "Three Musketeers," who favored the changes: Justices Louis Brandeis, Benjamin Cardozo, and Harlan Stone. In the middle were two moderates, Justices Charles Evans Hughes and Justice Owen J. Roberts, with Roberts usually siding with the "Four Horsemen" to overturn New Deal legislation.
The "Four Horsemen" were publicly reviled. Burned in effigy in city squares, they nevertheless stuck to their opposition, often meeting together to formulate opinions and questions at oral argument. In the 1935 term alone, this voting bloc overturned the Agricultural Adjustment Act of 1933, the Federal Farm Bankruptcy Act, the Railroad Act, the Coal Mining Act, the National Industrial Recovery Act, and a New York minimum wage law.
In 1936, FDR won reelection by a landslide and believed that this mandate gave him a chance to defeat the Four Horsemen. He announced legislation that would add (through a thinly-veiled mandatory retirement plan that required retirement at 70 or appointment of an additional judge if retirement was refused) as many as six new justices to the court, turning the conservative voting bloc into a minority. In one stroke, the president proposed to regain "control" of the court.
There was immediate backlash. The public and press were split, but most (along with many in Congress) considered the move to be an improper, and undemocratic, power grab.
Most historians seem to think that the proposal never would have passed. But events on the high court soon made the effort moot. Shortly after its announcement, in a move that the press called "the switch in time that saved the nine," Roberts sided with the Three Musketeers in a minimum wage case, and what support there was for the court-packing bill subsided. Within a year, Van Devanter and Sutherland retired and were replaced by Justices Hugo Black and Stanley Reed, both FDR appointees who proved to be strongly in support of his New Deal.
Modern opinion writers would do well to remember our past. What we are seeing is not a new politicization, but the continuation of a trend that is inherent in our system of checks and balances, and a history of attempted political tinkering that repeats itself with some frequency. There may very well be better ways of constructing the Court, and revisiting the court's role and composition periodically is a healthy thing. But overstating the current state of events, underestimating public esteem for the high court and its fragile but important position, and refusing to acknowledge history, does not help that cause.
(image source: February 1937 cartoon in opposition of FDR's court-packing plan, publication unknown)
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Tuesday, March 19, 2019
As an appellate attorney, I often find myself serving as both attorney and counselor to trial lawyers. As an appellate attorney at trial, I am trying to make sure error is preserved and that we are right on the law and its presentation to the court. As a counselor, I often find myself trying to calm down the rhetoric and rancor.
While the days of "Rambo litigation" have died down a bit, there is still a strong current of thinking in the law that if you aren't being angry and contentious, you just aren't passionate enough about your case. I have always disagreed. I believe that passion is important, but that you can be passionate without being contentious, and that courtesy, instead, is actually more persuasive. Over time, that belief has proven out, as I hear from judges and justices and juries about how they perceive the bluster in a negative light.
A few months ago, Professor Peter Huang published an article explaining a bit more about (among other things) the economic costs of lawyer hostility and unhappiness. It is an interesting read. Here is the link to the article: https://content.sciendo.com/view/journals/bjals/7/2/article-p425.xml
While the first part of the article largely recounts Huang's (extraordinary) journey through higher education, what caught my attention was his discussion of lawyers, mindfulness, and happiness. Huang was a professor of mathematics and economics before he went to law school and became a law professor, and his insights into the profession are unique.
For instance, Huang notes studies showing that students tend to enter law school focused on intrinsic values, like the desire to do good, help the vulnerable, and improve society in general. By graduation, they have been altered, and tend to focus on extrinsic values relating to class rank, grades, honors, and salary offers. This journey leaves them scarred: one survey of law students showed that one-quarter to one-third of respondents reported frequent binge drinking or misuse of drugs, and/or mental health challenges, while another Yale survey showed that 70% of the law students surveyed suffered from some type of mental health issue.
Worse yet, when they graduate, they often see that their hostility is financially rewarded, and this behavior is reinforced. Some clients seek out "Rambo" lawyers who will be argumentative and antagonistic, thinking such attorneys are the most effective. And the rules of civil and criminal procedure often appear to incentivize and reward that mindset. Thus, Huang reasons, "An economically-minded observer might simply characterize the unhealthiness of law practice and law school as just additional costs of being a lawyer and law student, albeit emotional health, mental health and physical health costs that are hard to perhaps measure, observe, quantify, and verify."
Those costs, while difficult to measure, are simply too high. Lawyers are the most frequently depressed occupational group in the United States. To cope with that depression and anxiety, many lawyers self-medicate with alcohol or drugs. Attorney overdose and suicide rates are very high. This has not only a personal cost, but a professional one as well.
Huang leaves out another category of costs: the perception of our judges and juries. One need practice only a short time to discover that judges negatively view hostility in those who appear before them. Credibility before the court is hard to quantify, but communication theory since at least Aristotle suggests that its loss has a high (and lasting) cost in lawyer effectiveness before our increasingly frustrated courts.
But even without those costs in his calculations, Huang notes that a recent meta-synthesis of several empirical studies revealed that both clients and attorneys tend to value "soft skills" that relate to empathy and integrity more than they do "hard" expertise. Attorneys value the ability to assess deals and propose solutions, the ability to assess and mitigate risks, honoring commitments, delegation to and management of support staff, integrity and trustworthiness, keeping information confidential, punctuality, and treating others with courtesy and respect. Clients, similarly, value lawyers who accurately estimate and clearly explain attorney fees, communicate with clients, are empathetic, listen well, are responsive to clients, are respectful, have strategic problem solving skills, are trustworthy, and who understand client needs. In other words, other lawyers and clients do not value naked aggression as much as they value other skills that are incompatible with that approach.
What, then, can we draw from this? Huang and the resources he cites (as well as personal experience) indicate that the costs of hostile "Rambo" litigation are simply too high to justify any value that might be perceived to lie in such conduct. This attitude and practice does not lead to personal happiness, but rather leads to high personal costs as well as a loss of credibility with the legal community and courts. And all in the name of trying to enhance one "skill" of questionable worth, while eliminating many other soft skills that clients find truly valuable.
You can be a zealous advocate without being a jerk about it. I have always believed it's the right way to practice, and my anecdotal experience is that it is more effective. It's good to know it makes sense empirically, too.
(Image credit: Scene from a December 1883 incident in a Prescott, Arizona courtroom during the trial of Kelsey v. McAteer, source unknown (likely the local Prescott newspaper), wherein the attorneys' fight over the admissibility of an affidavit escalated into a battle with a knife and gun in the courtroom. For more information: https://www.historynet.com/disorder-in-the-court-the-lamentable-occurence.htm).
Thursday, February 21, 2019
Lawyers engaging in law blog writing is so widespread that the ABA annually recognizes the best blogs. (The Appellate Advocacy Blog was delighted to join the list this year!) The writing done on these kinds of topical law blogs does not pose any ethical issue for authors - because these blogs are not advertisements. They do serve several purposes however: to feed the desire of the writer to write and explore ideas, to join the broader conversation in the legal community, and to inform readers who may be specialty practitioners or the general public. These lawyers, as writers, are not ghostwriters: they write their own content. Considering these purposes, there would be no point to that!
But there is lots of other writing about law going on that is ghostwritten and it is causing some to raise ethical concerns. Law firm and lawyer websites that exist to advertise legal services frequently buy legal content or employ ghostwriters to produce the information on their websites. This may consist of short informative articles about certain aspects of the law in which the firm or attorney practices. Sometimes lawyers sign their names to these types of articles giving the impression that they are also the writer. Some say this is adverting and as such it is misleading. Others say this is no different from a partner signing his name to a brief written by his associate. The ABA has not yet officially weighed in on the controversy.
Barbara S. Gillers, chair of the ABA Standing Committee on Ethics and Professional Responsibility, in an email to the [ABA] Journal. “In my view, ghostwriting a blog post for a law firm is not by itself a problem so long as the lawyers for whom it’s been written approve it, adopt it as their own, and the content comports with the lawyer advertising rules. The fact that the post appears under the name of a person other than the original is not in and of itself improper.”
Under Rule 7.1 of the Model Rules of Professional Conduct, a lawyer must not mislead the public about his services.
Information About Legal Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
The argument against ghostwriting for website content is that through the interaction with the content the potential client is developing a trust toward the lawyer. By allowing the client to assume the lawyer is the author of the content the client is mislead in some way. Does this violate Rule 7.1? Is this an omitted fact that is necessary for the client to judge whether the lawyer has mislead her on the services offered? I am not sure that it is.
A lawyer is not an island. In other words, in order to provide competent legal services, a lawyer almost always needs help - whether it be from the paralegal, the associate, the colleague, or someone writing content for the website. All of these individuals may contribute to a final writing product that a lawyer will present to the public, the court, or to other attorneys. In the case of submissions to the court or another attorney, no "byline" credit is necessarily given to those who have contributed. Website content is simply an extension of the lawyer's practice and it seems inconsistent to require a lawyer to acknowledge a ghostwriter in that context where he would not do the same in legal practice. So long as the lawyer has personally approved the content to be published under his name, it seems like a stretch to say this runs afoul of ethical rules on advertising.
Perhaps our readers have some other thoughts on this emerging ethical issue?
Sunday, February 10, 2019
Hi everyone! I'm grateful to be included as an author on the Appellate Advocacy Blog. Please bear with me as I get the hang of it.
For my first post, I wanted to address something that has been happening with alarming frequency in my practice. A little background--in 2015, I opened my appellate practice after teaching lawyering skills for ten years. Since returning to practice, I have been (perhaps naively) surprised at what attorneys will say in briefs. In my pre-teaching life as a young(er) attorney, the joy in writing briefs was that the record was the record and I didn't have to argue facts. (Insert your favorite "in my day, we had to walk 4 miles through the snow to get to school in the morning...."). And now in my post-teaching life, I find myself responding to Statements of Fact that omit relevant facts, and misrepresent others. Is this a new trend in line with the whole "Alternative Facts" movement? And what to do about it?
Of course, everyone knows the rules here. Federal Rule of Appellate Procedure 28 requires that an appellant's brief contain "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record." The state corollary in Missouri, where I have been practicing the last two years, defines the Statement of Facts as "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Even though the terms "relevant," "concise," and "fair" might have different meanings to different writers, the rules just don't provide for omission of key facts, or reinvention of facts in the record.
And of course there's Model Rule of Professional Conduct 3.3 requiring "candor to the tribunal." A lawyer may 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;
(2) 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; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
I've discovered a few additional imperatives when reviewing your opponent's statement of facts that I hope you will find useful.
- Look carefully for material omissions.
Since our first year legal writing class, we have learned that attorneys can't omit bad facts in the statement of facts. We are taught how to "artfully" deal with the bad facts, or hide them in plain sight, or just admit them and get the whole business of bad facts out of the way. But in reality, bad facts are omitted from the Statement of Facts all the time.
Example: Initially, the parties were granted joint legal and joint physical custody over the child, but Mother had "final say" if the parties could not agree. After the first custody modification proceeding, that "final say" language was removed from the parties' parenting plan and the parties were ordered to share all decision-making rights.
So the way these facts are presented, it would seem that as a result of the modification proceeding, neither parent had "final say" in making decisions for the child, right? Wrong. While the facts as stated were themselves accurate, and the words "final say" were removed from the parenting plan, the writer of that brief omitted the following: "in the event that the parties cannot agree, Mother shall have the discretion to make the final decision. . . ." The prior modification decision wasn't at issue in this appeal, but still. Less than scrupulously accurate? In your response, point out the omission and correct it, clearly and concisely.
2. Identify inaccurate inferences based on trial testimony, or "I don't think that word means what you think it means."
For most appellate lawyers, our job is to identify the meanings of words. I love nothing more than a good old-fashioned plain language statutory interpretation argument. But beware of the tendency of some to assume an agreed-upon meaning of what was said.
Example: Mr. Smith consented to his attorney's withdrawal, when Mr. Smith said "okay" after the trial court stated it was granting the attorney's motion to withdraw.
As anyone reading a trial transcript can attest, instances of the word "okay" occur more frequently than we'd like to believe, and do not usually indicate consent. Get out the old dictionary (I always go with the OED because it is so comprehensive), and point out that the word "okay" also means "introducing an utterance or as a conversational filler, typically without affirmative or concessive force, but rather as a means of drawing attention to what the speaker is about to say: well, so, right." Done and done.
3. Beware the Projector, or "I know you are but what am I?"
After you've filed your brief, whether you're representing the appellant or the respondent/appellee, be prepared for allegations of inaccuracy in your Statement of Facts. Urban Dictionary defines"projection" as "[a]n unconscious self-defence mechanism characterised by a person unconsciously attributing their own issues onto someone or something else as a form of delusion and denial."
Example A. Broad accusations: The appellant's one-sided, argument-riddled statement of facts is unfit to be a statement of facts in an appellate brief.
How to respond to this? I believe in reiterating the scrupulous accuracy and citations to the record for your statement of facts. Nip that one in the bud, but address it.
Example B. Specific false allegations: In his Statement of Facts, Mr. Smith states that the premarital portion of his retirement account was valued at $200,000, without disclosing it was just his testimony.
Actual sentence in the Statement of Facts: "Mr. Smith orally testified that, the premarital portion of the retirement account was valued at $200,000."
What to even do with that statement? Again, just unpack it for the court, explain the omission and the inaccurate nature of the claims. My suggestion in brief writing, is to tolerate none of this kind of manipulation, even if the issue itself isn't one for the court of appeals. Be unwilling to allow another officer of the court to paint your writing as manipulative or deceptive.
4. A few final tips for disputing untruths:
- Be short and direct. Leave the outrage at the door. (i.e., don't say "nowhere has the undersigned read a more egregiously inaccurate Statement of Facts").
- Avoid adjectives and adverbs ("Respondent is incredibly, blatantly wrong"). I like to say simply: "Respondent is wrong."
- If you are the respondent, better to first set the record straight and dispute inaccuracies made by your opposing counsel; then bolster your own story. If you are the appellant, brace for the attack, and then respond in your reply brief.
- This is a good time for bullet points. Just list everything in the opposing Statement of Facts that's inaccurate or misleading, or omits information, in bullet form.
- Move on to your own story as quickly as possible.
In the world of appeals, we fancy ourselves the intellectuals and academics of legal practice--so why would any appellate attorney wants to put his or her reputation on the line by omitting and reconstructing facts in the Statement of Facts section of a brief? And then, is it your responsibility to correct these mischaracterizations? I think yes. Does it matter how significant the mischaracterizations are? I think no.
Correct all outright lies, omissions of critical facts, and suggestions of blame-shifting. Use your allotted word count to be scrupulously honest.
And for next time---misrepresenting legal authority. Or I'm open to suggestion!
Thanks for reading,
Thursday, January 24, 2019
Harvey Weinstein can likely afford the best attorneys money can buy. He has chosen high profile lawyer Jose Beaz, and Harvard Law professor Ronald S. Sullivan, Jr.
Harvey Weinstein's primary accuser, actress Rose McGowan, is also high profile. She recently pleaded no contest to a drug possession charge where she was represented by .... Jose Baez and Ronald S. Sullivan, Jr. Say what?
Is this a conflict of interest? Perhaps not a technical conflict of interest, but it certainly doesn't feel right.
McGowan is Weinstein's first and most vocal accuser, however, she is not part of the case being prosecuted against him now in a Manhattan court. She is not currently on any witness list for the case, so the reasoning goes that so long as that remains the state of affairs, there is no conflict of interest.
Under the Model Rules of Professional Conflict, Rule 1.7 discusses Conflict of Interest: Current Clients.
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
Applying the rule to McGowan's interests, it seems clear that there is no concurrent conflict in that she is no longer represented by Baez or Sullivan, and the matter in which they did represent her is not related to their current representation of Weinstein. Their actions in Weinstein's current case have no definite bearing on any duties they may have to her in the future regarding her previous case. But, it still doesn't feel right.
Curiously, another celebrity just lost his lawyer under similar circumstances. The rapper 6ix9ine (birth name Daniel Hernandez) is standing trial for racketeering, gun crimes, and other charges. When the judge in Hernandez's case learned that his attorney, Lance Lazzaro, had served as the attorney for Hernandez's co-defendants in previous cases, he threw him off the case citing potential conflict of interest. In this case the conflict involves parties to the case, and it's possible that Lazzaro could have possession of information from the previous cases that would help his current client, and harm the co-defendants - even if Lazzaro did not actually have that sort of information. No one can really know, and his presence alone combined with the previous relationships, will create the perception of a conflict. The judge made the right decision in order to safeguard the integrity of the trial.
While McGowan is not expected to participate in Weinstein's current trial, it is not beyond the realm of possibility that her former lawyers possess information that could aid Weinstein's defense, and at least in an indirect and perhaps intangible way, still harm McGowan. She is the face of the #MeToo movement, and this representation undermines her story in a way that is hard to describe, but feels like betrayal to her. As a matter of comity and respect to the client who came first, Baez and Sullivan ought to decline representation of Weinstein.
McGowan has made claims that, if true, would warrant an ethical investigation. She plead no-contest in her drug possession case, but says Baez did nothing. She derided his professionalism and thinks he was bought off by Weinstein.
“I asked Jose Baez directly if he would ever work with Harvey and I told him it was my fear that he would be bought off while representing me,” McGowan said. “He responded by saying, ‘I don’t like to lose.‘”
Whether any shady dealing happened there, and whether any shady dealing will imbue to the good fortunes of Harvey Weinstein is not presently known, but there is one way to help reassure the public that the officers of the court hold the integrity of the judicial system in high regard. They should take a pass.
Thursday, December 20, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Distraction is not the first thing that comes to mind when thinking about effective persuasion. Isn’t the aim of persuasion—and advocacy more generally—to try to avoid distraction? To the contrary, Professor Melissa H. Weresh argues that distraction and redirection are persuasive techniques that advocates can use effectively to influence results. In her article, “Wait, What? Harness the Power of Distraction or Redirection in Persuasion,” recently published in Legal Communication & Rhetoric: JALWD, Professor Weresh “studies how distraction influences results and whether there is therefore a potential for the intentional use of distraction, or redirection, in advocacy.” As a baseline, Professor Weresh defines distraction, misdirection, and redirection as “deliberately redirecting the attention of the listener with persuasive intent in mind.”
Professor Weresh connects the use of redirection in advocacy to principles from storytelling and psychology. All three hinge on the innate human desire for “equilibrium, or resolving uncertainty.” When redirection techniques are used to disorient the listener and shock her out of her equilibrium, a solution can then be offered that resolves the uncertainty and allows the listener to regain her control, leading to a solution that the storyteller wanted all along.
Professor Weresh argues that advocates are already using redirection techniques, even if they are not explicitly described as such. As advocates, lawyers use redirection by making choices “as to what to reveal or emphasize” to “orient the reader’s focus or attention,” which then “redirect[s] the attention to a persuasive result.” For example, criminal defense lawyers have multiple redirection strategies at their disposal. They can use explicit misdirection to create doubt about bad facts and law by “keeping relevant material out of consideration, confusing witnesses, or redirecting the flow of the argument.” With this strategy, the lawyer tries to “undermine the plausibility of the story offered by the prosecution and therefore to interfere with the coherence of the story offered by the prosecutor.” Criminal defense lawyers can also use more implicit redirection strategies, such as using closing arguments to recast the role of the jury as the protagonist. But the use of redirection is not limited to the criminal defense context. Professor Weresh also presents other redirection strategies that can be used more generally. For example, advocates may frame or reframe an issue to invoke the decisionmaker’s fear (“the reptile strategy”). When used by plaintiffs, it “seeks to pit the [decisionmaker] against the defendants by making the [decisionmaker] feel that the defendants’ actions and products threaten themselves, their families, and their societies.”
Redirection strategies, of course, raise ethical concerns. If lawyers are expected to be truthful, then how can they engage in misdirection? There is no bright line between true and false; instead, there is a continuum—some middle ground between absolute truth and deliberate misleading or misrepresentation. Ultimately, advocates must use their own judgment when considering how they can effectively, and ethically, use redirection techniques in their practice.
Professor Weresh’s article pushes readers to consider how redirection could supplement approaches to advocacy and, more generally, to persuasive storytelling.
Special thanks to Alison Doyle for her help with this blog post.
Thursday, November 15, 2018
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?
Thursday, October 18, 2018
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.
Thursday, October 4, 2018
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).
Thursday, September 20, 2018
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.
Thursday, June 14, 2018
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.
Monday, April 23, 2018
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.
Thursday, March 29, 2018
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. 
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.
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
People can either like Star Wars or Star Trek, but cannot like both
You like Star Trek
You do not like Star Wars
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
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
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
The Earth might be flat or round
I believe the Earth is flat
The Earth is flat
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
 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
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.
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.
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)