Saturday, December 14, 2019
In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing. While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.
The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained: “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” 942 F.3d 783, 792 (7th Cir. 2019). For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog. https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.
The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility. Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics. See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012). In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law. 658 F.3d at 797-800. According to Judge Sykes, who also authored McCurry: “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.” Stanard, 658 F.3d at 798. Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in Stanard. Id. at 800-02.
For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise. I also use the case to show how lack of civility to the court and others inhibits persuasion.
Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive. On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.” See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).
Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts. 2019 WL 6242111, *2-4. In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings. Id. After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining: “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.” Id. at *4.
This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil. Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” Id. at *4. When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id. Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.” Id. According to the court: “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender. Id. at *5. As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.” Id.
The court ended its opinion: “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.” Id According to Briganti, good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.” Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.” Id.
Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal. MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist: Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019). While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past. Id.
Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions. And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful. Happy holidays!
December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)
Saturday, December 7, 2019
In recent years, social scientists have demonstrated that all individuals likely harbor implicit, or unconscious, biases. Additionally, based on empirical research, some scholars contend that laws or policies that disparately impact marginalized groups result, at least in part, from implicit biases. Other studies suggest that certain behaviors, such as statements reflecting subtle prejudice against marginalized groups (e.g., microaggressions) result from implicit biases. As a result, many organizations in the public and private sector have instituted training programs that focus on implicit bias, its allegedly deleterious effects, and the methods by which to alleviate such bias in, for example, the hiring and promotion of employees or admission of applicants to universities throughout the United States. And researchers at Harvard University have developed the Implicit Association Test (IAT), which purportedly measures the degree to which an individual harbors implicit biases in a variety of contexts, including those affecting traditionally marginalized groups.
Certainly, striving to eradicate biases that produce discriminatory or disparate impacts on individuals or groups is a moral and legal imperative; discrimination in any form is intolerable and contravenes the guarantee that citizens of all backgrounds enjoy liberty, equality, and due process of law.
But does implicit bias actually – and directly – correlate with biased behavior?
Recent research in the social sciences suggests that the answer to this question remains elusive and that the effect of implicit bias on biased behavior may not be as significant as previously believed.
To begin with, there is a general consensus among scholars that implicit bias exists. Put simply, all individuals, regardless of background, arguably harbor implicit biases or prejudices. Importantly, however, the distinction between implicit and explicit bias is difficult to ascertain and operationalize. In other words, how can researchers claim with any degree of confidence that discriminatory behaviors or policies that, for example, disparately impact marginalized groups are the product of implicit rather than explicit bias? Currently, there exists no reliable and objective criteria to make this distinction.
Furthermore, if, as some researchers contend, implicit bias resides outside of consciousness, it would seem difficult, if not impossible, to remedy the effects of such bias. After all, if we cannot be aware of these biases, how can we regulate their manifestation in particular contexts? Also, how can researchers reliably claim that implicit bias predicts biased behavior if not a single person, including researchers, can be aware of its presence and influence? This is not to say, of course, that individuals are unable to develop an increased awareness of the explicit biases that they harbor and take steps to minimize the effect of such biases on their behaviors. It is to say, though, that the relationship between implicit bias and biased behavior remains uncertain, and that there is no method by which to quantify the effect of implicit bias on biased behavior given the presence of other relevant factors (e.g., explicit bias).
Moreover, recent research suggests that the correlation between implicit bias and biased behavior is dubious:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior.
These findings, the researchers state, “produce a challenge for this area of research.”
Additionally, the IAT, which is a popular assessment of implicit bias, has faced significant criticism concerning its methodology and practical value. For example, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs. Also, scores on the IAT are arguably context-dependent and thus produce different results for individuals who take the test multiple times. Consequently, although results on the IAT are “not as malleable as mood,” they are “not as reliable as a personality trait.” Likewise, it is difficult to assess whether the IAT is measuring unconscious attitudes of mere associations that result from environmental influences.
In fact, researchers have conceded that the IAT is flawed, stating that, although the IAT “can predict things in the aggregate … it cannot predict behavior at the level of an individual.” In fact, one of the IAT’s creators acknowledged that the IAT is only effective “for predicting individual behavior in the aggregate, and the correlations are small.” Perhaps most surprisingly, one researcher explained that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.” As a social psychologist explains:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
Of course, this does not mean that implicit bias bears no relationship to biased behavior. It simply means that more research is necessary to determine whether, and to what extent, implicit bias predicts biased behavior. After all, given that eradicating all forms of discrimination is a moral imperative, researchers and policymakers should ensure that society is using the most effective measures to do so. This includes assessing whether implicit bias is a credible predictor of biased behavior.
 Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807 (emphasis added).
 Azar, B. (2008). IAT: Fad or Fabulous? American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.
 German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. (March 7, 2017), available at: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test-racism; see also Heather MacDonald, The False Science of Implicit Bias, (Oct. 9, 2017), available at: https://www.wsj.com/articles/the-false-science-of-implicit-bias-1507590908.
 Id. (emphasis added).
 Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea (Dec. 2, 2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
Tuesday, December 3, 2019
On the Appellate Advocacy Blog, we typically focus on advocacy in appeals. This is the typical understanding of what an appellate attorney does - handle appeals. But in reality, an appellate attorney wears many different hats depending on the context of the representation.
It is important, from both an ethical and practical standpoint, to define the scope of each representation. Ethically, Rule 1.2(c) of the ABA Model Rules of Professional Conduct allows an attorney to “limit the scope of representation if … reasonable under the circumstances and the client gives informed consent.” The attorney must also communicate to the client “[t]he scope of the representation and the … fee and expenses ….” (Rule 1.5(b)).
Practically, an appellate attorney needs to define the scope of the representation so they can adequately meet their client's needs. Each case has different requirements, and if those requirements are not defined and communicated clearly, necessary work can either fall through the cracks or be unnecessarily duplicated.
In my practice, I try to have this scope discussion as early as possible, usually during conflicts checks. For new clients, I often start with setting out the different models under which I typically work as an appellate specialist. These are:
- “Embedded” Appellate Specialist. The appellate specialist works with the trial team from the beginning of the case. This includes drafting pleadings, pretrial motions, limines and charges, handling motion hearings, directed verdicts, charge conferences, and then any resulting appeal. In short, this model has the appellate specialist overseeing the legal aspects of a case from beginning to end. This model permits the trial team to focus on factual development and trial strategy, and the appellate specialist to focus on legal argument and error preservation. The model is typically used in complex matters, cases with large potential exposure, and cases that the parties intend to appeal no matter the result. Primary responsibility for the case usually shifts from trial counsel to appellate counsel after trial, although trial counsel may, in some cases, remain in a "first chair" position throughout.
- “Consulting” Appellate Specialist. The appellate specialist steps in primarily to observe and assist in a secondary capacity. Sometimes insurance underwriters or corporate clients will become concerned when a case seems to be “going south,” or when a case involving a significant potential verdict approaches trial. In those cases the appellate specialist is usually contacted shortly before trial, and serves as an additional briefing and research consultant for the trial team, while observing and sending daily reports to the client. This helps prepare the attorney for any necessary post-judgment work, because they become familiar with the case through the daily observations and reporting, and helps make sure any issues identified as potential appellate points are preserved for future appellate review. In other cases, the specialist may not be contacted until after the appeal or post-judgment motions are filed, and serves primarily to test, refine, and tighten arguments raised by trial counsel through the drafting process and in mooting the arguments prior to any hearings or oral argument.
- “Traditional” Appellate Specialist. The appellate specialist is brought in to handle the appeal post-trial. This traditional model has the appellate specialist review the same record that the appellate court will review, and present a new, objective view of the merits of the case and the likelihood of success of any appellate point. The specialist takes the record as they find it, and then helps with postjudgment motions and essentially takes over the case on appeal.
By presenting these models, I can then discuss with the client whether they need to use my services in line with one of those models or as something of a mix. That discussion then defines what work needs to be done, how that work should be prioritized, and who will bear responsibility for that work. I can then either include that specific scope in the letter of representation, or state a more general scope with some comfort in the knowledge that we have a set understanding of what that means.
In some cases, it may be necessary to go further and specifically state what role you will not be filling in a case. In cases involving insurance coverage, for instance, it is a good practice to specifically state that you are not coverage counsel, and that you are not choosing points on appeal based on their ultimate effect on coverage in the case, unless you are specifically instructed to do so by the client. In cases where there is already suspicion or acrimony between the client and trial counsel, a disclaimer that you are not going to advise on any malpractice theories may also be wise in order to preserve your focus on the appellate issues in the case.
However you ultimately define the scope of your engagement, the discussion with your client to set that scope will help more clearly define the client's needs and expectations in both of your minds. Only through that type of discussion can you be sure that those needs are met. Both you and the client will benefit.
(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)
Thursday, November 14, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.
In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.”
Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions. First, is a lawyer's digital public commentary a unique genre of legal writing? And, if it is, what are the rhetorical possibilities for and problems of this form?
I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing. First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing. Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients. Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language).
Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role. The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.” Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.
So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do. And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.
The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of "digital rhetoric," rhetoric that is electronic or computerized. While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features. Two of those features are circulation and fragmentation.
Circulation refers to the way a message moves from audience to audience across space and time. The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.) Message circulation increased and accelerated with television and radio. But, even then, gatekeepers controlled the amount, speed, and movement of information via those media. With the internet, however, both the speed and range of message circulation has increased again. That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.
Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages. That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation. In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example. This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.
So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?
First, we might ask questions about the resources available to lawyers in the digital space. What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces? Are/should any of those methods be ethically off limits to lawyers? Conversely, how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law? For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?
Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation. What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer? Is misuse and misinterpretation of message fragments inevitable? If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer? How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?
Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric. If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?
These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more. Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Tuesday, October 15, 2019
Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.
Model Rule 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.
Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.
Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:
were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.
The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.
The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.
Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:
(a) A lawyer shall not knowingly:
(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[.]
Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.
Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.
In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.
In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.
The court admonished:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:
While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.
Finally, appellate counsel must be mindful of Model Rule 8.2(a):
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .
Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).
Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.
The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:
Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
Id. at 148-49.
Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.
We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.
Thursday, October 10, 2019
Last week the public witnessed a remarkable scene when the 18 year old brother of murder victim, Botham Jean, forgave his killer from the stand and asked to give her, Amber Guyger, a hug. Even more remarkable was the interaction of the defendant and the judge in the case, Tammy Kemp, when she gave Guyger a bible and also a hug.
Now, the judge is the subject of an ethics complaint, but the reason may not be what most people would think of first. The complaint was filed by the Freedom from Religion Foundation and argues that the judge was proselytizing in violation of the First Amendment. Was that your first thought when you saw the scene?
The initial concern, it seemed to me, was the intimate action of the judge and the defendant. The judge did not maintain a physical distance or a seemingly emotional distance from Guyger, which will inevitably lead to conflict of interest claims if Guyger will appear before the judge in the future. The judge defended her actions:
“If she wanted to start with the Bible, I didn’t want her to go back to the jail and to sink into doubt and self-pity and become bitter,” she said. “Because she still has a lot of life ahead of her following her sentence and I would hope that she could live it purposefully.”
Over the last several years we have heard judges making various statements from the bench indicating certain political or ideological positions. I maintain those types of proclamations are best kept to themselves, in the interest of presenting the perception of an impartial judiciary. The judge's sentiment is laudatory, but this seems quite egregious.
The complaint regarding a violation of religious freedom seems creative, but is it the strongest point of error? Physically, the judge was not on the bench, and the proceedings seemed to be concluded, or at least there was no more business to attend to. It doesn't appear that the judge was acting in an official capacity at that exact moment (though I've done no targeted research to support this impression). Perhaps our readers know of similar situations where incidences like these have not been viewed as ethics violations?
(*image credits: Tom Fox, Dallas Morning News via AP, Pool)
Tuesday, October 8, 2019
The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.
One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.
Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."
This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.
Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.
This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."
This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?
These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.
That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."
Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.
The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.
* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).
(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Tuesday, September 24, 2019
Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.
This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.
There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.
Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.
These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.
In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.
In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.
The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.
Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.
Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.
This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.
As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.
Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.
(image source: Library of Congress, World War II poster from the U.S. Navy)
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.