Appellate Advocacy Blog

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

Monday, June 17, 2019

Tips for Securing an Appellate Clerkship

While we often post on this blog about appellate practice, I thought that I would take a small detour of sorts and post about how to secure an appellate clerkship.  A state or federal appellate clerkship is an excellent stepping stone to an appellate career.  But how do you secure an appellate clerkship?  Although the easiest route to a federal appellate clerkship is to attend a top 5 law school and receive top grades (or lots of high-passes), there are plenty of opportunities for students at non-top 5 law schools to secure clerkships. 

(1) Get good grades:  Regardless of where you attend law school, getting good grades and being ranked in the top 5% or 10% of your class is pretty important.  If you are seeking a federal appellate clerkship from a lower-ranked school, you probably need to be in the top 5% of your graduating class.  Students who aren't ranked in the top 5% but who want to do a federal appellate clerkship should consider starting with a federal district or magistrate clerkship or clerking first at the state supreme court or intermediate appellate court level.

(2) Be on a journal: For many judges it is important for applicants to have journal experience.  Much of the work that appellate law clerks do mirrors journal work.  For some judges, high level moot court experience could replace journal experience.  

(3) Get to know your professors: I have heard from people in the know (judges or their career clerks) that strong letters of recommendation are helpful for securing clerkships.  So, you need to get to know your professors well enough for them to write good letters. One way to do this is to visit office hours or to serve as a research assistant for a professor.  And, in asking professors to write letters, pick the professor who knows you the best, not the professor who is most well-known in academia. If you are particularly well-connected to a professor, that professor might have personal connections with judges and be willing to send a direct email or make a phone call on your behalf. I have done this for students, and I have also connected prospective applicants with friends who have clerked for judges.

(4) Get to know judges: Interning or externing for a judge can be a great segue into a clerkship. You get to know that particular and often the others in the courthouse.  You can see what the judges do, and hopefully end the experience with a great recommendation.  Another way to meet the local judges is to participate in local lawyer activities, like the local bar association, the Federal Bar Association, or legal-organizations like the Federalist Society or the American Constitution Society.  Most of these organizations offer very cheap student memberships, and many local state and federal judges actively participate in these organizations.

(5) Find a connection: Apply to judges with whom you share some sort of connections. Perhaps you went to the same undergraduate institution or law school. Maybe you were both in the girl scouts or some other organization. Maybe you both grew up in the same town.  Find those judges, apply to them, and mention the connection in your cover letter.

(6) Work your way up: When I graduated from law school almost 15 years ago (yikes, I feel old), it was the norm to go straight to a federal appellate clerkship.  That is no longer the case.  Even students from top 5 law schools often stack clerkships--starting with a federal district or magistrate clerkship and moving their way up to a federal appellate or state supreme court clerkship.  If you are interested in clerking at the state level, you could certainly stack a state intermediate appellate clerkship and a state supreme court clerkship.  I also know of a student who went from the state supreme court to the federal district court.  The point is to be creative! If you view each clerkship as a learning opportunity, stacking clerkships just gives you more time to learn.

(7) Don't forget the state courts: If you want to have a predominantly state practice, you should consider a state court clerkship. I believe that the value of a clerkships lies in the experience and mentoring that you receive.  I have met many a state court judge who is better equipped to do this than some federal judges.  So, even though some people might not consider state clerkships to be as prestigious, I would encourage you to consider applying for one, especially if you think that the judge would be an excellent mentor.

(8) Start thinking about a clerkship early: Finally, I would recommend that you start thinking about a clerkship early in your legal education. This allows you to form relationships with professors, request letters of recommendation, apply for internships, and get on a journal. If you aren't sure if you want to clerk, stop by a professor's office to ask about her clerkship experience.  Or, try working for a judge your first summer out of law school.  That experience should help you know a little bit what a clerkship would be like.

Good luck to all of the students applying for clerkships right now!

 

June 17, 2019 in Appellate Practice, Law School, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Tuesday, April 30, 2019

The Ongoing Experiment of State Judicial Selection

Nast Aug 7 1875

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.”).

April 30, 2019 in Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession, State Appeals Courts | Permalink | Comments (0)

Tuesday, March 26, 2019

The Dangers of "Us Versus Them" Thinking

They-were-usually-less-glamorous-than-those-shown-on-tv-photo-u1

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)

March 26, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, March 21, 2019

Entering Law School at 17

Each fall, upon entry of the newbie 1Ls to law school classes, it always seems to me like they are getting younger and younger. Most years, the perception is just because I am getting older and older! But this fall, at Southern Methodist University's Dedman School of Law, the youth of at least one new 1L will be very, very young.

Haley Taylor Schlitz is only 16 now, but after her birthday, she will be entering SMU's class of 2022. Obviously a bright young lady, Schlitz was homeschooled, graduated high school at 13, and finishes her undergraduate studies this spring. Schlitz was actually accepted at nine law schools, so this girl is the real deal. She is thinking of entering 

I wish this promising young mind well. She clearly has the aptitude for the academic rigor she will encounter, and her young age will add a dimension to the classroom very rarely found. 

I expect that many law professors have had the experience of teaching variously aged and experienced students. I often find I am a bit biased toward the older students who have made a change in the direction of their life (I was one of them myself). They bring a lot of diversity of thought to the classroom. In the classes I teach in admiralty and law of armed conflict I especially enjoy when students can add color to what life on a vessel is like, or how being deployed really feels. I often think in my ideal world, every law student would have significant life experience before coming to law school. But is it necessary to become a great lawyer? No, not at all, because I hope we are always learning no matter where we are in life. 

Best of luck to Ms. Schlitz and I hope to hear great things from her one day soon. But no pressure! 

 

March 21, 2019 in Law School, Legal Profession | Permalink | Comments (0)

Tuesday, March 19, 2019

The high cost of contentious litigation

Prescott Incident

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).

March 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Rhetoric | Permalink | Comments (0)

Tuesday, March 12, 2019

A “Writer’s Toolbox” - Part I (A Practical Writing Library)

As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."

While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools. 

Today, I focus on my writer's library.

I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use.  Below are some of my favorite writing resources:

Handbook Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux  [ISBN: 9781454889335]

This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.

 

 

Plain English for LawyersPlain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]

This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.

 

 

 

 

Bluebook

The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]

My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well. 

I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.

 

Bluebook Uncovered

The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}

This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.

 

 

Dernbach

A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]

This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples. 

 

 

 

Just Briefs

Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]

This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.

 

 

 

Webster

Merriam-Webster Smartphone App (available on itunes & google play)

My final go-to reference is an app. I use both the dictionary and thesaurus features. 

 

 

 

Books

What's in your writer's library? 

Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.

March 12, 2019 in Appellate Advocacy, Appellate Practice, Books, Legal Profession, Legal Writing | Permalink | Comments (9)

Monday, February 25, 2019

Moot Court Season

Moot Court season is upon us.  Law students from around the country are headed off to compete in a mock appellate arguments on a wide range of topics.  This past weekend students competed at the Jeffrey G. Miller National Environmental Law Moot Court Competition (more commonly known as Pace).  Students also competed at the San Francisco and Portland regionals for the National Appellate Advocacy Competition put on by the ABA.  (Congrats to the teams from my school that both made it to the round of 5 at the San Francisco regional). 

This coming weekend Boston and Philadelphia host their NAAC regional competitions. And, my school hosts the National Native American Law Student Association Moot Court Competition.  We are looking forward to hosting 40+ teams from across the country to argue a difficult, but fascinating, Indian Law problem.

The University of Houston has already started tabulating the top moot court programs for its rankings.  This year the current top 5 is Texas heavy:

  1. Baylor
  2. Loyola University
  3. South Texas
  4. University of Georgia
  5. University of Houston

I really love moot court.  I love coaching, I love judging, and I love seeing students develop over the course of the weeks that they work on the problem.  Moot court has many benefits for students.  While it certainly teaches them teamwork, it also teaches them to be problem solvers and work independently.  For most moot court competitions, students cannot receive any outside help on their briefs.  For some competitions, they can't even receive substantive help during their oral advocacy practices. Moot court also teaches time management.  Some of the major competitions, like the NAAC and the NNALSA, require students to brief over the winter holidays. Finally, moot court helps students learn to become excellent public speakers.  I have heard that the number one fear that people have is public speaking. As a person who formerly hated public speaking, I know that the only thing that has helped me improve is practice, practice, practice.  Moot court does that for law students.

Moot court has benefits for the local legal community too.  Volunteering to judge provides you with more than a few free CLE credits, it allows you to think about and discuss an interesting area of law.  Moot court problems are often centered around an interesting and unsettled area of the law--the kind of question your least favorite professor might put on a law school exam.  It can be fun to get back into law school mode and ponder these questions (especially when you are asking the questions, rather than the other way around).  I also think that moot court gives us hope for the next generation of lawyers.  They can, and will, do great things.  That is exciting.

But, despite the excitement, moot court isn't perfect.  It isn't perfect because we all know that the briefs are way more important than the arguments in real life.  It also isn't perfect because, just like in real life, gender stereotypes can rear their ugly heads.  I was reminded of that this week when I saw an article on Law.com announcing that the first female appellate law clerk had passed away at the age of 94. Carmel Ebb, who graduated first in her class at Columbia Law in 1945, is believed by most to be the first woman to clerk for a federal appellate court judge.  She clerked for Judge Jerome Frank on the Second Circuit.  She interviewed for a Supreme Court Clerkship but, according to her obituary, “Her hopes were dashed when the justice concluded their conversation by saying he had no doubt she would be a fine clerk, but that his wife would never allow him to work in such close proximity to a woman.” Ms. Ebb went on to have a successful career, including making partner at a New York firm.

So how do gender stereotypes play a role in moot court?  Next post I will look at an article on this topic.

 

February 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, Tribal Law and Appeals | Permalink | Comments (0)

Friday, February 8, 2019

Appellate Advocacy Blog Weekly Roundup February 8, 2019

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

 

Supreme Court Opinions and News:

The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal.  The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals.  Justice Kavanaugh filed a dissent.  The Court's vote likely signals that the Court will hear the case during its next term.

Justice Ginsburg made her first public appearance since her recent hospitalization for cancer surgery, appearing Monday night at an event at the National Museum for Women in the Arts in Washington, D.C.

      

Federal Appellate Court Opinions and News:

Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.

 

State Appellate Court Opinions and News:

In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.

 

Practice Pointers:

The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue.  The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.

On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."
     

February 8, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Friday, January 25, 2019

Appellate Advocacy Blog Weekly Roundup January 25, 2019

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).  You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt

Supreme Court News and Opinions:

The Supreme Court is out of session for a few weeks, now that the January sitting is over, although this week saw the issuance of some orders and decisions from last week's conference.

The Washington Post reported earlier this week about how the Court has maintained a relatively "low-key term," delaying taking up a variety of divisive issues such as immigration, abortion, and sexual orientation and gender identity, while also signaling some interest in other controversial topics like transgender service in the military and the Second Amendment.  CNN had a similar story.

Earlier this week, over the objection of the four more liberal members of the Court, the Justices allowed the Trump Administration's ban on transgender members serving in the military to go into effect while the issue is litigated in lower courts.  MSNBC had a report.  CNN also reported, noting the impact the Court might have upon the 2020 Presidential election.

On Tuesday, the Court granted cert in a case involving a challenge to New York City's limits on transporting personal firearms, bringing an opportunity for the Court to provide clarity on its Second Amendment jurisprudence.  With the shifting makeup of the Court now leaning more conservative, there is speculation that the Court will create a test for handgun restrictions that invalidates many local laws.  The case is New York State Rifle & Pistol Association Inc. v. City of New York. More about the case and what the eventual ruling  might  mean for the Second Amendment and gun regulations from the Atlantic and National Review.

Federal Appellate Court News and Opinions:

The Eighth Circuit Court of Appeals recently issued a decision in a case that provided some discussion of interest to appellate advocates concerning the procedural distinction between an appeal from a decision granting summary  judgment and a decision denying a motion for reconsideration and the respective standards of review.  The case is SPV-LS, LLC v. Transamerica Life Insurance Company.  Thanks to reader Ben Rand of Harris Beach for the tip about this opinion.  According to Rand (quoting one of the firm's attorneys): "The court focused procedurally on the appellant's efforts to conflate [the decision granting summary judgment and the decision denying reconsideration and the respective standards of review], and the Eighth Circuit carefully distinguished between the separate and distinct standards of review. If there were doubts in the Eighth Circuit regarding these concepts and related standards of review, the Eighth Circuit laid them to rest in this decision."

State Appellate Court News and Opinions:

The Arizona Supreme Court was scheduled this week to hear arguments in a case concerning how far business owners can go in refusing to serve customers because of their sexual orientation.  The case presents the question of whether the owners of a business can refuse to use their talents to design custom wedding invitations and other materials if the couple is of the same gender or whether they are required to serve the couple under a city of Phoenix ordinance barring places of public accommodation from sexual orientation discrimination.  More from Tucson.com. 

Practice Pointers:

Law.com had an article this week feature #AppellateTwitter's Neal Katyal and discussing how he handles juggling multiple and back-to-back appellate arguments.

Appellate Twitter's Matthew Stiegler had a blog post this week providing advice to lawyers preparing for their first-ever oral argument.

Appellate Job Postings:

The Constitutional Accountability Center has a posting for an Appellate Counsel position.

The California Office of the Attorney General has a posting for a Solicitor General position.

January 25, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, December 27, 2018

A Lawyer's New Year's Resolution

The week between Christmas and New Year's always feels magical to me. It's like it doesn't count against time, and once Christmas zone is entered, it transports me without notation to the first of January.  A lost week.

When I was in practice, though, it was anything but. I can't remember a week between these two points where I wasn't buried deep in writing memos and responses. It was not a time of renewal or relaxation. And as a single mom, it did nothing to help me feel good about being a mother. Hardly a time for balance or reconnection.

As a law professor, however, I now have this glorious downtime, and it gives me the opportunity to think about things. It is a privilege for which I am duly grateful. Since I've been writing here I've gravitated toward ethical issues, a real surprise since I had no special interest and do not teach in the area. Despite that, I have now developed a profound interest in ethics and look for those specific events in legal practice to share here. 

Taking advantage of this extraordinary privilege of time off between Christmas and New Year's I am currently traveling to Reykjavik. I am not sure what came over me to visit the land of fire and ice during the time of year where there are only four hours of daylight, but I will try anything once. On my Uber ride to airport I told my driver I was a lawyer. He told me of his terrible experience he had with lawyers. He apologized at the end of the ride and said he hope he had not ruined my trip. He most certainly had not. He set me on fire.

Why is it that so many of the stories that everyday people have about lawyers is how bad they are? From our point of view we work very hard to not make that so, but when we poll the public, we only hear more bad lawyer jokes. 

My driver's story was not catastrophic. He had been in a car accident; he was at a stop sign, another driver swerved across the line, she was avoiding a crash on her side of the road. He was not injured but his truck was totaled. His car was in the tow yard, waiting to be fixed, but his insurance would not pay, saying he was at fault. He was not at fault, but needed help to nudge the insurance company. He called many lawyers in town (many prominent names I won't mention here) and none of them would help him. The first question he was asked at each office he called, "Are you injured?" When he said no, they referred him on to someone else. Lawyers are also business people, and we understand exactly what was happening. His case was not worth much without a personal injury. Since that time he has told everyone he knows not to believe the ads on tv. Those lawyers will not get you $300,000 for your car accident. Unless you are in a wheelchair, don't bother calling for help.

My driver did find one young lawyer to help him with his claim. This lawyer knew the claim was not worth much, but for some reason had it in his heart to help. My driver, an older gentleman, told me how he cried when this one lawyer took the time to help him figure this out. 

To me, this small assistance is what is gravely needed in legal practice. The cost of legal education is astronomical and does not lend itself to taking on small claims and modest clients. Many other things factor into the cost of legal service that drives the cost up for clients. In the meantime, so many people who need simple help get shuffled around and likely end up not being able to assert their claims.

As a profession we have lots of high level awareness of this problem, but in my estimation it is frequently superficial. We have mandatory pro bono, we have many legal clinics dedicated to the indigent, we have guaranteed representation for criminal clients. But we do not have an industry where everyday people can seek legal advice for a reasonable price. So many people who could benefit from legal counseling forego it because of the cost, or because they don't know how beneficial it would be for them. Simply to have their affairs in order is something everyone should be able to take advantage of. 

Perhaps I am wrong in this assessment, but it has been my impression for a long time, and this impression was reaffirmed just today. I would like to hear from our wide variety of readers if as legal professionals we are on the right track, or whether it is time for us to reassess and maybe realign our practice models. After all, the new year is upon us, and this is the perfect time for New Year's resolutions.

Here's wishing everyone a happy and healthy New Year. I hope we all find time to contemplate what matters and make concrete steps toward making life meaningful for ourselves, and for those around us. 

 

December 27, 2018 in Legal Profession | Permalink | Comments (2)

Thursday, December 20, 2018

Thinking Thursdays: The Power of Distraction or Redirection in Persuasion

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.

December 20, 2018 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Oral Argument, Rhetoric | Permalink | Comments (0)

Thursday, December 6, 2018

Thinking Thursdays: The Rule of Three

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

You may have heard repetition in writing is bad. But that’s only true for accidental repetition. In his essay, The Rule of Three, in the latest volume of Legal Communication & Rhetoric: JALWD, Professor Patrick Barry explains how legal writers can purposefully use repetition to provide rhythm to their writing. Specifically, Professor Barry focuses on the Rule of Three. The Rule of Three is a principle of writing (and speaking) that recognizes the phenomenon that information delivered in groups of three – not in twos, fours, or other groupings – is the most “comforting syntactic set.”

Just as the waltz (three beats) and the chord (three notes) have a pleasant resonance, words or phrases that come in threes have a similar effect on a reader. Famously, in his Gettysburg Address, President Lincoln emphasized that the Civil War was fought to preserve “government of the people, by the people, for the people.” If concision were Lincoln’s only aim, he might have instead said the war preserved “the people’s government.” And yet, even in his brief 272-word address, Lincoln chose to use the Rule of Three to make the point. The result is a musical phrase that has remained a memorable part of American history.

But the Rule of Three is not reserved for moments of historical importance. In fact, when you start looking for it, you’ll see the Rule of Three everywhere:

  •     In advertising – “New Year. New Adventure. New Sale.” (Southwest Airlines)
  •     In literature – “I took a deep breath and listened to the old brag of my heart. I am, I am, I am.” (Sylvia Path, The Bell Jar)
  •     And in law* – “In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Justice Sandra Day O’Connor, Troxel v. Granville, 530 U.S. 57, 66 (2000)).

Professor Barry offers these examples and many more. He also offers a formula of sorts for legal writers seeking to add Rule of Three rhythm to their memos and briefs: “short, short, kind of long” or “same, same, kind of different.” It’s as easy as one, two, three.

 

 

* See what I did there?

December 6, 2018 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Tuesday, November 20, 2018

Thinking Tuesdays: Practicing the Violin for Legal Writers

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

A violinist studying to be a professional must practice between four to six hours a day, with at least one hour devoted to studies and simple exercises. Professor Ian Gallacher argues that the same should be true of legal writers—just as violinists must practice the violin every day to become better violinists, so must lawyers practice writing every day to become “more reflective, intentional, and more technically assured, writers.” This comparison is the genesis of Professor Gallacher’s article, “Four-Finger Exercises: Practicing the Violin for Legal Writers,” forthcoming in Legal Communication & Rhetoric: JALWD.

The article begins with a slice of music history, focusing on the origins of Beethoven’s Kreutzer Sonata, “arguably the greatest violin sonata composed.” Professor Gallacher weaves together the sonata’s history with the intersection of Beethoven and Rodolphe Kreutzer, “a very obscure French violinist” who found himself the dedicatee of a sonata that he had never performed or heard of, and George Polgreen Bridgetower, a “violin virtuoso” who was the sonata’s likely intended dedicatee (until he got into a fight with Beethoven over a woman, or so the story goes).

But Kreutzer’s greatest legacy is the collection of 42 studies that he wrote while he was a Professor of Violin at the Paris Conservatoire in the late eighteenth century. Each study requires the violinist to explore a specific element of violin technique in a methodical and careful manner. By using only simple and easily remembered notes, the studies allow the violinist to focus on technique without having to worry about musical expressivity. For example, in the famous second study, Kreutzer number two, the violinist is tasked with fifteen versions, or “incipits,” of the first measure of the exercise in order to perfect her bowing technique. The study is a “complete laboratory for bowing, allowing the violinist a place to work on every conceivable style of bow stroke and configuration.”

Just like violinists, legal writers also need to practice the technical components of their craft. But after the first year of law school, most lawyers never practice their writing again. As Professor Gallacher explains, lawyers “perform writing, but don’t practice it.” This lack of practice is understandable: lawyers are overwhelmed by their billable hours, already churning out and handling a “flood of words.” And yet, for “anyone who seeks to persuade, or attempts to summarize complex information in simple, well-structured, and easily read portions,” fine-tuning one’s writing is essential. Thus, Professor Gallacher sets out to propose the legal writing equivalent of Kreutzer’s studies.

So, what does writing training after law school look like? Professor Gallacher begins by introducing suggestions to consider when completing the exercises that he later proposes. His suggestions—“not rules”—include: (1) stepping away from the law and concentrating on the act of writing itself; (2) experimenting with how fonts and text size may impact your work; (3) practicing for 15 minutes, ideally in the morning; (4) practicing daily, or at least regularly; (5) changing your writing medium to see if it affects your style and quality of writing; (6) changing your writing conditions (music in the background? location?) to see if that affects your writing; (7) identifying your writing routine and your “trigger to creativity”; (8) waiting to review your exercise writings for a couple of days, identifying trends (both good and bad), and, for further reflection, joining other lawyers in a writers’ circle; (9) demanding honesty about the merits of the work and kindness to the writer; (10) identifying your weaknesses and coming up with exercises to work on those weaknesses; and (11) recognizing, and being okay with the fact, that these exercises were designed to develop technique, not to produce artistry.

Professor Gallacher builds on the foundation of these suggestions by proposing ten exercises that, like Kreutzer’s violin studies, are intended to help lawyers improve the distinct components of legal writing. Within each exercise, Professor Gallacher includes alternatives and questions for reflection, pushing lawyers to honestly critique their approach and technique. His proposed exercises range from freewriting, designed to “stretch out writing muscles and prepare you for a day’s writing,” to writing about an engaging piece of art without adverbs or adjectives, designed to have you “write objectively about something that is inherently subjective and emotional in nature.” With just a few minutes a day (ideally, fifteen), legal writers can practice their craft so that when it is time to perform, they are ready.

Legal writing is a skill that, like all skills, must be maintained. Professor Gallacher’s article succeeds in explaining why “simple repetition of performative writing is not enough.” His list of suggestions and exercises are both broad enough to stimulate creativity and narrow enough to provide an “action list” for legal writers who want to get better. The article is a great addition to the reading list of any practitioner, judge, or law student who wants to develop and fine-tune their legal writing abilities.

Special thanks to Alison Doyle for her help with this post.

November 20, 2018 in Appellate Advocacy, Law School, Legal Profession, Legal Writing, Music | Permalink | Comments (0)

Thursday, November 15, 2018

Jones Day Means Pay Day for Supreme Court Law Clerks

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

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

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

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

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

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

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

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

 

 

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

Thursday, November 8, 2018

Thinking Thursdays: Dethroning the Hierarchy of Authority

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

The hierarchy of authority – the ranking of legal authorities within binding/persuasive and primary/secondary categories – is a component of basic lawyering 101. Professor Amy J. Griffin, in her forthcoming article Dethroning the Hierarchy of Authority, however, argues that the conventional view of legal authority as a “hierarchy” is simplistic and fails to adequately capture the complex ways that practitioners and judges select and rely on authority.

Professor Griffin argues that the traditional categorization of legal authority into binary categories that are static is “significantly flawed, and seriously incongruent” with the use of authority in practice. In particular, Professor Griffin focuses on lawyers’ use of persuasive authority – which she calls “optional authority.” This category of authority has drastically expanded in recent years because the internet has made both legal and non-legal information easily accessible.  This accessibility has led lawyers and judges to increasingly cite types of information previously unseen in briefs and judicial opinions – information ranging from social science authorities and empirical studies to tweets.  Professor Griffin observes that despite this explosion in availability of possible optional authorities to cite, the current hierarchy of authority “offers no means of differentiating between sources as disparate as empirical social science studies and legislative history.” The article warns that without a model governing the appropriateness and authoritativeness of such sources, “the only guard against bias seems to be the adversarial design of the judicial system.”

Although commentators have previously offered suggestions regarding how lawyers should choose which optional authorities to cite in support of their arguments, Professor Griffin states that “no comprehensive view” has been articulated and argues that “we must resist the appeal of a neat objective ranking.” Instead, she proposes a “shift to a holistic, pluralistic view of legal authority.” This pluralist scheme would permit scholars to develop a theory to explain the use of optional authority and would give lawyers a better predictive model of authority. A key role of lawyers is to predict legal outcomes for clients. If lawyers do not have a theory to explain why judges choose to rely on certain optional authorities over others, then making those predictions becomes significantly more difficult. Although Professor Griffin does not offer a scheme, her article raises interesting and important questions about the weight of authority in a world where lawyers now face more choices of authority than ever. Professor Griffin concludes that “[w]e need a wider lens and more flexible framework” that permits a deeper exploration and understanding of the complexities of the weight of authority.

November 8, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, November 1, 2018

Highlights from the 2018 Appellate Hot List

The yearly Appellate Hot List recognizes lawyers and law firms who achieved great victories at the Supreme Court or federal appeals courts. This year's list of 22 includes firms perpetually on the list like Jenner and Block, Jones Day, and Mayer Brown. But it's worth clicking over to see short vignettes on each firms' most notable cases for the year.

The money at stake can be astronomical, as in Kathleen Sullivan's victory of a vacation of $139.8 million dollars royalty damages award in Power Integrations v. Fairchild Semiconductor. That was only one of Quinn Emanuel Urquhart & Sullivan's achievements this year in the multi-million, and billion dollar range. Sullivan's advice for succeeding in her complex cases is to "simplify, simplify, simplify."

Geyser PC's Daniel Geyser convinced the Supreme Court to find in his client's favor regarding the Mandatory Victims Restitution Act, also a multi-million dollar case. His client was facing investigatory costs over $5 million. The Court limited the scope of the costs under the act. Geyser credits his success to being creative in his firm's approach to the case. They explore every angle and they keep the same lawyers on the case from start to finish. 

More and more Indian Tribe controversies are gaining public notice, and Pratik Shah of Akin Gump Strauss Hauer & Feld, has a list of victories to show for them. In the Patchak v. Zinke property dispute, Shah developed a second angle to his argument that first focused on separation of powers. His strategy paid off when he won 4 votes from the Court on his primary argument, and 2 more members concurred in the judgment on his alternative legal theory argument. He too emphasizes thinking creatively, and to be confident about rethinking, revamping, and reframing arguments.

 

November 1, 2018 in Appellate Advocacy, Legal Profession | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 22, 2018

Seventh Circuit Benchslap

Two weeks ago the Seventh Circuit issued a benchslap to a lawyer who modified her brief after being asked to resubmit her brief with a redacted appendix.  The facts of the case are not pretty.  On March 30, the attorney filed her brief (after 5 time extensions, one of which she requested when the brief was a day late).  Opposing counsel realized that the appendix to her brief contained material that the court had ordered redacted. 

On April 6, the granted the attorney's motion to file a corrected appendix.  The ordered directed her to  "'file by April 11, 2018,  a new electronic version of [the] brief that includes the fully-redacted appendix.'"  She complied with that order, but also made "substantial changes in the body of the brief, altering propositions of both fact and law."  Opposing counsel, once again, caught the discrepancies, and asked for more time to address these changes.  The court granted that request, but also directed the attorney to "file another brief that would eliminate the substantive and wording changes."  The Seventh Circuit cited its opinion in Khan v. Midwestern University, which addressed differences between electronic and paper versions of a brief.  In Khan, the court noted that paper and electronic versions must be identical.

The attorney resubmitted the brief, claiming that it was identical to the March 30 version, but it wasn't.  The attorney claimed that the changes were accidental and asked the court if she could "re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version" and from the March 30 version.  The court, rather fed up by this point, issued an order giving the attorney "14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of [her] repeated alternations of a brief that should have changed."

In her response, the attorney claimed that she thought that the order allowing her to make redactions also allowed her to make substantive changes to the brief.  The court "accept[ed] her assertion that she believed that she could do so," but noted that "errors made with an empty head are hard to excuse."  She blamed "the second error on infelicitous naming of files on her computer."  The court found this excuse harder to swallow, noting that she never compared the documents or reviewed date stamps.  According to the court, "Making an error once is bad; making it twice in a row--and in the teeth of the warning in Khan . . . is unfathomable."

Despite the harsh language, the attorney got off easy--just a public reprimand.

I find this opinion particularly interesting given the uneasy alliance between electronic and print copies of briefs.  Many judges are now working off of electronic copies of briefs, yet many circuit still require paper copies to be filed, sometimes a few days after the e-copy is due.  It is imperative that attorneys file identical copies.  As the Seventh Circuit noted, this requirement ensures that everyone is working for the same version of the document.  I am sure that this attorney learned her lesson.

 

October 22, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

Special thanks to Alison Doyle for her help with this blog post.

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Thursday, September 13, 2018

Thinking Thursdays: ALWD Guide to Legal Citation -- the Sixth Edition is better than ever.

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners.  An end to the tyranny of The Bluebook! A coup de grace!  

And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.

Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?

Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual.  The only difference is that you'll be able to understand and use the ALWD Manual!”  

This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.

September 13, 2018 in Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)