Saturday, October 12, 2019
United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons
On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.
Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
By way of background, Title VII provides in relevant part as follows:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.
II. Discrimination on the Basis of Sexual Orientation
On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.
On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).
III. Discrimination Against Transgendered Persons
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:
Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.
Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”
This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”
Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”
The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.
The Court will likely issue a decision in June 2020.
 42 U.S.C § 2000e-2.
 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).
 See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.
 Id. at p. 27:22-25.
 Id. at p. 25:17-18.
 Id. at p. 50:24-51:1 (emphasis added).
 Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.
Sunday, October 6, 2019
Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.” Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.” In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”
What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?
1. Justice Scalia Wrote Clearly and Concisely
Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.
2. Justice Scalia Wrote for the Audience
Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:
I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."
For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.
Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters
3. Justice Scalia Understood the Importance of Rewriting and Revising
Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:
I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."
Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:
What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."
Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.
4. Justice Scalia Understood that Great Writing Reflects Great Thinking
Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind." An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.
5. Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience
Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.
As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.
Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.” Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”
 David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer
 Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).
 Id. (emphasis in original).
 Id. (emphasis in original).
 Id. (emphasis added).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).
 Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.
Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).
Saturday, October 5, 2019
Recently, in a first-year writing class covering hierarchy of authority and our U.S. Court system, my students and I discussed membership in the bars of the United States Supreme Court and Circuit Courts of Appeals. The 1Ls did not know these courts have separate bars and admissions, and asked how and why practitioners might join. I shared the process for the Supreme Court and the Ninth Circuit (we’re in California) with them, and let them know they might even participate in a December group swearing-in at a Circuit Court one day. Many students said they would see these memberships as prestigious and impressive.
The class discussion led me to survey my local appellate pals informally. While a few were jaded about the value of listing these bar admissions in their firm bios or on resumes, many of our appellate community practitioners use memberships in these bars as indicia of appellate experience, especially if they do not have a state appellate specialization to list. A search of Twitter reveals attorneys bragging about their federal licenses, and one friend told me she added all of her federal bar admissions to her LinkedIn profile when she let her state appellate specialization expire. Another colleague told me partners asked about these admissions when he wanted to move from litigation to an appellate department at a large law firm. While this is anecdotal evidence, it supports the value in highlighting any federal bar memberships, especially appellate court bar memberships.
Therefore, the next time you update a professional profile, you should consider adding any federal bar admissions you have. In fact, one law school career development office expressly suggests doing so. https://pennstatelaw.psu.edu/career-planning-and-development/alumni-career-services/adding-bar-admission-your-resume.
Curious about applying to a federal bar? Check out the court’s website. If you do not have an account for online filing, you will need one to practice at the Circuit Court (and sometimes you need to be a member first to create these accounts), so learn about PACER and CM/ECF, and start your registration process. Most of the Circuits still require anyone not newly admitted to a state bar to have either a sponsor or a clerk certification, and to also obtain a certificate of good standing from their state bar. E.g., https://www.ca9.uscourts.gov/content/atty_instructions.php; http://www.ca2.uscourts.gov/clerk/attorneys/admission_instructions.html. Moreover, while the forms are now available online through PACER, the $220-230 fee required by the courts is not de minimis. These are even more reasons to brag about your membership once you join. And, if you want the details for each federal court, author and general counsel John Okray has written an entire book on admission to the various federal district and circuit courts, U.S. Federal Courts: Attorney Admission Requirements: 2011 Edition (2nd Revised Ed. Lawyerup Press 2010).
Please feel free to comment about the memberships you list on your profiles and bios. I’ll be sure to share comments with my students. Thanks!
Monday, September 23, 2019
Yes, the title of this blog is designed to raise eyebrows. But no, I am not arguing for judicial activism as defined by the right or the left. Rather, I am arguing for a court that takes an active role in legal education. We need judges--state and federal--who visit law school classes, speak at campus events, teach classes and seminars, take interns, and otherwise engage in legal education in their state.
Since moving to Arizona, I have been astounded at how involved that state and federal judges are at the state law schools. For example, each academic year the state Supreme Court and the local appellate court hold arguments at the school where I teach. The local appellate court also welcomes students in our brief-writing course to its courtroom each semester to give their final arguments, with all of the judges and many of the clerks and staff attorneys serving as judges for the arguments.
Current and retired appellate judges and justices teach courses at the law school. They also attend campus events, give lectures at orientation or to student groups, judge competitions, and attend social events.
While I see the state judges on campus the most, the federal bench is also active. The federal judges are also good about judging competitions and speaking at or attending events. They also take a lot of student interns, and I always hear from students about what a great opportunity it was to intern at federal court.
The advantages of an active, engaged bench are profound.
First, judges make great mentors and role models for the students. Students are often more likely to listen to advice from judges, especially on topics like professionalism and civility, which are extremely important skills for students to learn.
Second, and related, judges reinforce what is said in the classroom. I can count on one hand the number of times that I have heard a judge give advice on brief-writing, advocacy, or professionalism that I disagree with. Generally, we are all on the same page, and, to the extent that we want to produce excellent future lawyers, we are all on the same team.
Third, our students are likely to give and do their best if a real judge is involved in an event or competition. While some students still care about impressing professors, nearly all of them care about impressing judges. They rightly see judges as a possible future employer and/or someone that they should try to impress.
Finally, having judges involved gives faculty a break. I can judge arguments, competitions, speak at events, and socialize, but it is so nice to have local judges who are willing to step into that role. Sometimes, after saying the same things over and over, we faculty members just need a break. Thankfully, we have enough judges in Arizona who lend a helping hand that they can get a break too!
I want to thank all of the state and federal judges who devote so much time to making law school a better experience for students. Your hard work does have an impact!
Saturday, September 21, 2019
Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated. According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it." The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time." https://constitution.congress.gov/about/
The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers. The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional.
Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited. Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only. On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.
In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained: “Unfortunately, the public facing version is not . . . lucid.” The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen." The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public. Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students." https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.
Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated. While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested. On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”
Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions. Moreover, the pages are integrated nicely with the Library’s other resources. For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.
For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource. Hopefully, the continued updates will be quick and helpful as well. Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.
Thursday, September 19, 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.
Today’s Rhaw Bar asks: can a lawyer be rhetorically effective if the lawyer lacks good character? A Roman rhetorician, Quintilian, didn’t think so. His “ideal orator” needed both eloquence and virtue. Quintilian’s ideas can reframe lawyers’ perceptions of their own work.
In popular culture, “rhetoric” is often used as an insulting term, not a complimentary one. For example, a speaker’s words might be called “empty rhetoric” or “merely rhetoric,” meaning the message is manipulative, dishonest, or insincere. In at least some cases, the implication is that the speaker who is engaging in “empty” or “mere” rhetoric has a poor character rather than a good one. That is, one who engages in “empty rhetoric” is also not a good person.
But first century Roman lawyer and rhetorical scholar Quintilian thought just the opposite. Yes, you read that right: only the “good person, speaking well” (a paraphrase of Quintilian’s words) could engage in rhetoric.
Marcus Fabius Quintilian taught and wrote about rhetoric during the Roman Empire (in the first century A.D.), when the emphasis on rhetorical training and in handbooks was primarily on legal rhetoric. This makes the work of classical Roman rhetoricians like Quintilian particularly helpful to practicing lawyers. (If you want to explore further, take a look at the works of Cicero, writing in the first century B.C.E., and at the anonymously authored Rhetorica Ad Herennium, written around the same time.) In both practice and teaching, Quintilian focused his work on legal rhetoric, and his Institutio Oratoria was his opus on teaching rhetoric.
In Institutio Oratoria, Quintilian describes, among other things, the “ideal orator,” the person who perfectly engages in rhetoric. He argues that rhetoric is not amoral; rather, rhetoric is necessarily moral—the orator’s job is to say what is “just and true.” Accordingly, Quintilian makes virtue a necessarily component of practicing rhetoric; any influential speech that lacks virtue is merely persuasion, not rhetoric.
So, who is this ideal orator who can “do” rhetoric? Quintilian answers: no person can be an orator (i.e., “do” rhetoric) unless that person is a good person—one who chooses virtue over vice, discernment over deception. For Quintilian, virtue is connected to sincerity. Only a virtuous person can be sincere and thus persuade to truth; a “bad” person, on the other hand, while perhaps capable of eloquence (i.e., speaking well), is insincere and thus not capable of rhetoric. The ideal orator is the person who has “the knowledge and boldness to speak with sincerity” while a person of “bad” character is one utters words “at variance” with his thoughts. In sum, perfect eloquence is the combination of speaking well and having virtue or, in other words, speaking well with sincerity.
Well, then, so what about this? Why should lawyers pay any attention to splitting hairs about what rhetoric—and the practicing of it—can mean?
Here’s one idea: In a 2013 Pew Research Center Study, lawyers were rated lowest in the amount of esteem the public holds for them. But Quintilian’s unbreakable connection between virtue and eloquence in the practice of rhetoric empowers lawyers to make a claim for lawyering as a virtuous profession. The craft of legal advocacy—advocacy that is grounded in rhetorical theory more than two millennia old—is, by definition, ethical, moral, virtuous. Framing the practice in this way has the potential to improve lawyers’ sense of the profession’s value to society and, as a consequence, improve their career satisfaction. Great legal advocacy is not insincerity; it is, by Quintilian’s definition, both sincere and effective, worthy of esteem.
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 firstname.lastname@example.org.
Sunday, September 15, 2019
Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers
Learning how to write effectively and persuasively in a variety of legal contexts is among the most important skills needed to competently practice law. Indeed, a recent survey by LexisNexis that included 300 hiring partners and law faculty revealed that forty-one percent of attorneys and fifty-one percent of law faculty believe that writing is among the most important skills needed to successfully practice law. See BarBri State of the Legal Field Survey, available at: http:// www.thebarbrigroup.com/files/white-papers/220173_bar_researchsummary_1502_v09.pdf.
Put simply, excellent lawyers are also excellent writers. A lawyer’s ability to draft persuasive pleadings, motions, and briefs at the trial and appellate stage often determines the likelihood of success in a particular case and the likelihood that an attorney will achieve success in the legal profession.
Given the importance of developing effective legal writing skills, particularly regarding persuasive writing, aspiring and current law students should strive to perfect their writing skills before graduation. Below are five tips, regarding both style and substance, that will provide a solid foundation upon which develop competent persuasive writing skills.
- Rewrite and Revise
Great lawyers know that their first drafts of pleadings, motions, and briefs are not their best and final drafts. Instead, great lawyers focus on rewriting and revising their first draft to ensure that their work product is of the highest quality.
The rewriting phase consists of a macro or substantive edit. A macro edit involves reviewing and editing a legal document for large-scale errors or omissions, with a particular focus on the flow, clarity, and substance of legal arguments. During this stage, you should:
- Ensure that your document flows effectively, is concisely written, and is easy to understand (e.g., eliminate unnecessary repetition and extraneous or irrelevant facts);
- Ensure that you have stated the law accurately;
- Eliminate unnecessary exposition of legal doctrine (i.e., state what the governing law is, but avoid a lengthy recitation of how the law developed);
- Ensure that you have addressed relevant counterarguments and acknowledged weaknesses in your case where appropriate; and
- Ensure that you have a powerful introduction in which you clearly state the basis upon which your client should prevail and obtain the remedy you seek.
The revising phase consists of a micro or stylistic edit. During this stage, you should:
- Ensure that there are no grammatical and spelling errors (if your legal document has spelling or grammatical errors, it will detract from the credibility of your legal argument);
- Separate long paragraphs into smaller paragraphs (as a general matter, a paragraph should be three to five sentences);
- Identify and revise lengthy sentences (as a general rule, sentences should be no longer than twenty-five words);
- Eliminate unnecessary words (particularly adjectives), commonly confused words, over-the-top language, and artificial emphasis;
- Ensure that you use transition words effectively;
- Maintain consistency in verb tense; and
- Ensure that you are using the active voice,
- Be Concise and Keep It Simple
Judges are very busy and, with the assistance of their clerks, judges read countless motions and briefs. Given this fact, neither a judge nor a clerk desires to read pleadings, motions, or briefs that are unnecessarily verbose and lengthy. For this reason, be sure to eliminate complex, esoteric, or unnecessary words, Latin, legalese, lengthy words and phrases, and repetition from your documents. Indeed, the quality of an attorney’s writing directly affects an attorney’s credibility and, ultimately, the likelihood of succeeding on the merits. Consider the following example (as stated in a complaint):
"The defendant’s shocking and insulting statements, which, as discussed infra and as outlined supra, were false, malicious, and injurious, particularly given that the statements caused plaintiff immeasurable embarrassment and humiliation ipso facto demonstrate that plaintiff has stated a prima facie case that the defendant defamed plaintiff in an egregious manner."
"The defendant made intentionally false and defamatory statements that caused the plaintiff to suffer substantial damages."
The first sentence is fifty words and the second is sixteen words. Yet, both sentences convey the same meaning and make the identical claim. Put simply, when drafting a complaint, focus not merely upon what you are saying, but how you are saying it.
- Draft a Compelling Factual Narrative
Although the governing legal principles in a case are certainly important, the facts of a case largely determine whether a litigant is likely to succeed on the merits. Indeed, because legal rules or standards are often stated in broad terms, the application and interpretation of those principles depend on the facts of a particular case. For example, the Eighth Amendment to the United States Constitution prohibits the imposition of “cruel unusual punishment.” Whether a punishment is cruel and unusual, of course, depends on the facts, namely, the specific punishment at issue that a claimant alleges violates the Eighth Amendment. Likewise, basic contract law principles provide that a contract is not valid without the parties’ assent. Whether the requisite assent is present obviously depends on the facts of a particular case. As these examples demonstrate, the facts, not the law, most likely determine whether a client is likely to prevail. For this reason, when drafting a pleading, motion or brief, be sure to focus on drafting a compelling, detailed, and concise factual narrative in which you persuade the court that a ruling in your favor is the correct and just outcome.
- Address Unfavorable Law and Counterarguments, and Explain Why They Do Not Affect The Remedy You are Seeking
In most cases, the law will not completely and unequivocally support an attorney’s legal position. Rather, the relevant case law will often contain favorable and unfavorable decisions that create some degree of uncertainty regarding the likelihood of succeeding on the merits.
Importantly, when drafting a brief at the trial, appellate, or supreme court level, an attorney should never ignore unfavorable case law. Doing so is dishonest and strategically risky because, in most instances, the judge will find the law that a lawyer has ignored, which will damage the attorney’s credibility and the persuasive value of the attorney’s legal arguments. To avoid this problem, a competent attorney will acknowledge unfavorable case law and explain to the court why these cases do not undermine the attorney’s argument and the remedy that the attorney is seeking. In so doing, an attorney will retain credibility with the court and maximize a client’s chances of succeeding.
- If You Want to Become an Excellent Writer, Read Excellent Writing
If you want to become an effective legal writer, be sure to read excellent legal writing, which will enable you to observe, among other things, how experienced attorneys apply various persuasive writing techniques to maximizes their factual and legal narratives.
Law students who are interested in reading excellent legal writing can begin by reading John Roberts’ brief in Alaska v. Environmental Protection Agency, which can be accessed here: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.
Of course, these tips are not exhaustive, but they will provide a foundation upon which law students can begin to develop effective writing skills. Additional resources include the following:
Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, available at: https://www.amazon.com/Point-Made-Write-Nations-Advocates/dp/0199943850
Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges, available at: https://www.amazon.com/Making-Your-Case-Persuading-Judges/dp/0314184716
Steven Stark, Writing to Win: The Legal Writer, available at: https://www.amazon.com/Writing-Win-Steven-D-Stark/dp/0307888711
Richard C. Wydick, Plain English for Lawyers, available at: https://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518
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?
Thursday, August 22, 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.
Today’s Rhaw Bar is inspired by the start of a new law school year. I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing. I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.
In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.” By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.
The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there. In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work. While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.
A Commenting Ethos Is A Perspective, Not A Technique
Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback. Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.” These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing. (You can learn about some of these techniques in the monograph and at the end of this article.) But, this post is not about technique. Instead, it is about the perspective one can take when giving feedback. That is, how should one think about the feedback task? How should a lawyer giving feedback approach the work? What attitudes should she adopt?
One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos. Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.
Aristotle considered ethos as having three dimensions: competence, character, and goodwill. In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback. A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future. Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.
Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member. In other words, ethos is a social act that takes place in a particular cultural context. Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation. The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback. I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.
A Positive Commenting Ethos: Expert Coach, Not Rival Writer
Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?
An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback. The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product. Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.” This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.
The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong. This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations. The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.
The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.” Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge. The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance. An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.
An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.” Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away. Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work. The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.
Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging. So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.
Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task. But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals. If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.
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, August 20, 2019
There have been numerous articles and speeches about the benefits of moot court for law students. Success in advocacy competitions in general is an overall indicator of success on the bar. It teaches the student to examine both sides of an issue, be thorough in their research and writing, develop professionalism in the courtroom, and to refine arguments through multiple iterations. Some students say that the exercise is one of their most educational experiences in law school.
But what about the coaches and advisors who work with the students? This year marks my 21st year coaching moot court teams. Over those 21 years I have been repeatedly questioned as to why I put so much effort into a work that has never generated a single appellate case referral. My answer is that while coaching moot court may never build your business, it can build you up in many other ways.
First, lawyers never stop learning the law. I coach three competitions a year, and they are difficult ones. While only one permits me to work with the students on the writing, they all permit working together in collaboration on the oral argument. Because they also all do a good job of developing problems that deal with perplexing and important issue of the day in the law, I am able to keep abreast of the law in ways that simply would not be possible if I were to focus exclusively on my practice. This is particularly true in the area of Constitutional law, in which I have developed a broad and deep knowledge that I find invaluable at odd moments in my practice.
Second, lawyers never stop honing their skills. As I work with students in each competition, I am reminded of the importance of certain skills and the impact of bad habits. That helps me keep my own skills sharpened. And I refine those skills through lessons I learn from those interactions.
Third, lawyers always benefit from a larger network. Whether you teach full time or practice law and have recently been asked to volunteer, you will likely benefit from expanding your network. You might get referrals later in your career, you might develop a peer group of other coaches and advisors that you can bounce ideas off over time, or you might develop a stronger reputation in your given area. Networking works differently for everyone, but there are always benefits.
And finally, lawyers need community. Practicing lawyers who work as mentors experience greater job satisfaction than those who do not. Our work, whether teaching or practicing law, can become painfully isolating. Coaching or advising a moot court team draws us out of our shells and into the lives of the students we work with.
Over the weekend I had the great honor of officiating at the wedding of two of my former moot court students. I was deeply honored and humbled by their request. While I may never receive an appeal to work on as the direct result of my work with students, no amount of legal fees could ever match the satisfaction and affirmation of that experience, or any of the personal interactions I have on an almost weekly basis with my former students.
Moot court is good for law students. It is good for their coaches and advisors, too. So if you are asked, say yes. And if you haven’t been asked, consider this an invitation to volunteer.
(Image credit: Honore Daumier, The High Tribunal of Judges, 1843)
Wednesday, July 31, 2019
I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.
Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.
These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.
Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.
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, June 25, 2019
In my last entry, I gave an overview of how to set up a moot court session for your real appeal, including panelist selection, timing, and preparation. Today, I want to talk in more details about how to set up and conduct the moot court session itself.
1. Plan Ahead and Be Respectful of your Panel's Time.
Making the most of this time is critical. You are either costing your panelists their time (if they have volunteered) or paying them for it, either in the form of a flat or hourly fee. Be respectful of that time. First, give them copies of the briefing and key cases or statutes far enough in advance that they can time-shift the work needed to be prepared for the session. Second, let them know your expectations for their participation at the session and the anticipated time involved.
2. Establish a Format for the Session.
The latter bit of information will depend on whether you are going to have a “typical” session or add on time. The “typical” session that I recommend is in two parts. First there is a true “moot court” session, accurately emulating the anticipated oral argument. Second, the panel takes off the robes (literally or figuratively) and talks through their critique of the argument and the answers given. Give yourself time for your moot court (with or without opposing argument presented) and then, as a rule of thumb, at least double that time for the follow-up discussion. Encourage the panelists to raise issues or questions that might not have been brought up during the round.
You can add to this time if you wish. Some practitioners want to give the argument first without questions as a straight run-through, then have the panel hear the argument again and ask questions. I usually counsel against this, because it means your moot panel will have heard the argument much more clearly than your actual panel will.
If your panel has time, you may want to have an initial roundtable after the argument, then watch the video and see what other questions or comments are brought to mind when doing so. As mentioned in the earlier article, you might even want to have a separate brainstorming session before your response or reply are due, in order to flesh out issues during briefing instead of oral argument.
In my moot court coaching, I alternate between informal roundtable discussions, question and answer sessions, and argument. Over the years I have come to believe that it takes all three types of preparation, much like a sports team might have team meetings to discuss plays, conduct skill drills, and then play in scrimmages in order to prepare for a real game.
Whatever the plan is, make it explicit to the panel and be sure to prepare for each step. Do not underestimate the time for your panel if you want them to work with you again.
3. Accurately Emulate the Oral Argument.
Next, pay attention to the actual setup of the moot court session. I prefer using as realistic a setup as possible. If you have never argued before a particular court before, find out what kind of timing mechanism is used and find one that matches it as closely as possible. If you are not familiar with timing lights, they can be very distracting and a bit confusing. To prepare, you can find timing lights on Amazon or other retailers. Practicing with the light will help you get a better feel for how to time your argument without fearing your first encounter with “the light.”
If possible, try to hold your moot session in a setting that emulates your oral argument environment. Many law schools have practice courtrooms, with some set up for appellate simulation. In a pinch, a conference room will work, but use a podium and have the panel sit together so you can get used to scanning for reaction. Teleconferencing is also an option if time or distance simply do not allow for everyone to be in the same room, but I don’t find it to be as accurate a simulation as other setups.
4. Prepare Yourself and Your Panel.
When the date of the session arrives be sure that you and your panel are prepared. If you have selected former justices, appellate practitioners, or even former clerks for the court you are approaching, and have provided them with materials in time to prepare, they will be ready to serve as a general panel. If you receive a notice of panel change or setting, be sure to share that with them and discuss potentially doing additional research to emulate a particular justice on the panel, if that is the approach you wish to take.
Prior to the session, practice and refine your argument on your own, and work with potential Q&A that you and your colleagues may have developed. If you are a newer or infrequent advocate, and you are nervous about how to handle questions, one practice technique is to write down anticipated questions on note cards, give them a good shuffle, then start your “speech,” grabbing a card at intervals and responding to the questions while working back into the arguments.
Finally, watch oral arguments from your court, your panel members, and your opponent. The proliferation of online videotaped oral argument is a wonderful preparation tool.
5. Enjoy the Conversation
The ultimate goal of all of this work is to make yourself comfortable with the subject matter, the format, and the environment to such an extent that you are able to engage in a meaningful conversation with your real panel. Only by working with a practice panel can you reassure yourself that your weaknesses have been fully probed, and only be simulating the experience accurately can you feel comfortable when you stand to speak. But don’t forget to enjoy the moment – oral argument is increasingly rare on appeal, and each time it is granted you are being given an opportunity to meaningfully collaborate with the court in properly developing the law in a setting that is meant to speak your sometimes dry legal arguments to life.
(Image credit: My furtive photo of an excellent simulation experience for two of my SMU Law School moot court students, Adrian Galvan (speaking) and Sydney Sadler (sitting to his left) at the final round of the TYLA Moot Court Competition earlier this month, where they were able to argue in front of all but one of the judges (that is the proper term for this court) from the Texas Court of Criminal Appeals.)
Monday, June 17, 2019
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!
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, 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)
Thursday, March 21, 2019
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!
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).
Tuesday, March 12, 2019
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:
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 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.
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.
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.
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 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.
My final go-to reference is an app. I use both the dictionary and thesaurus features.
What's in your writer's library?
Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.
Monday, February 25, 2019
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:
- Loyola University
- South Texas
- University of Georgia
- 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.