Sunday, May 28, 2023
Drafting a Strong Preliminary Statement
The preliminary statement, or introduction, is among the most critical parts of a brief. Indeed, the preliminary statement affords you the opportunity to concisely and persuasively explain why you should win, and thus make an excellent first impression on the reader. Below are a few tips on how to draft a strong preliminary statement.
1. Begin with a strong opening sentence that captures the reader’s attention.
The first sentence in the opening paragraph of your preliminary statement should tell the court precisely and persuasively why you should win. Put differently, it should contain the theme of the case. Doing so will capture the court’s attention and focus the court’s attention immediately on the arguments that you believe support a ruling in your favor. Be sure, however, not to draft an opening sentence that contains over-the-top language and unnecessary adjectives, that is excessively long, or that contains excess or esoteric words. Keep it simple and to the point. Consider the following examples:
“The defendant subjectively believed that her life was in danger when she used lethal force, and the decision to use such force was objectively reasonable.”
“This case is about the defense of self-defense, and the defendant should be found by this court to have exercised the defense of self-defense in this case.
Of course, the first example is not perfect, but you get the point. The second sentence is an unmitigated disaster and will certainly not capture the judge’s attention (in a positive way) or begin your brief persuasively.
2. Tell the court what you want.
In the first paragraph of your preliminary statement, inform the court of the relief that you are seeking. For example, if you are opposing a summary judgment motion, say, “The defendant’s motion for summary judgment should be denied,” or if you are the plaintiff moving for leave to file an emergent appeal, say, “The plaintiff’s motion for leave to file an emergent appeal should be granted.” It sounds simple – and it is – but it's important to let the court know at the outset what relief you are seeking.
3. Tell the court why you should get what you want.
Explain to the court why you should get what you want. One strategy to ensure the effective organization and flow of your preliminary statement is to use the Rule of Two or the Rule of Three roadmap, in which you state concisely the two or three reasons that support ruling in your favor. Doing so gives the court an outline of the arguments to expect in the brief and allows you to explain why those arguments are meritorious. Consider the following examples:
“The plaintiff’s defamation claim should be dismissed because the allegedly defamatory statements: (1) were substantially true; (2) constituted protected opinion; and (3) did not cause the plaintiff’s alleged harm.”
“The plaintiff has alleged that the defendant defamed her, but that claim should be dismissed because, as discussed below, several defenses exist that prohibit the plaintiff from recovering damages in this matter.”
The problem with the second sentence is that it doesn’t say anything, and it gives the court no indication of the arguments that you intend to rely on to support your position.
Importantly, each paragraph that follows should be dedicated to explaining separately why each of the two or three reasons supports your position.
4. Be concise.
Always be concise and get to the point, using simple language and, as a general matter, never exceeding three pages. As such, avoid, among other things, Latin, legalese, fancy “SAT” words, long sentences, adverbs, adjectives, over-the-top language, and unnecessary repetition. Using such language suggests that you are trying to artificially persuade the court and do not believe in the strength of your arguments. Consider the following examples:
“On December 1, 2022, a blizzard struck Hasbrouck Heights, New Jersey, a town of 15,000 residents, with accumulations of approximately twenty-two inches of snow. The defendant, Mike Smith, owned Mike’s Grocery Store, a popular destination for many Hasbrouck Heights residents. In the aftermath of the blizzard, and for approximately five days, Mike remained open but did not make any effort to clear the snow and ice that had accumulated in the parking lot and walkway. As a result, on December 3, 2022, as Barbara Johnson, an elderly woman and a frequent patron, was walking to the front door, she fell, suffering severe injuries, including a concussion and broken shoulder. Barbara’s injuries were the direct and proximate result of Mike’s negligent conduct and entitle Barbara to damages.”
“As discussed in more detail infra, on December 1, 2022, a shocking event occurred in Hasbrouck Heights, New Jersey that no one could have ever predicted or imagined. Almost two feet of snow fell and the deleterious effects on the town’s vulnerable residents were incalculable and incomprehensible. However, despite the undeniable dangers that the storm engendered, Barbara Johnson, an elderly and mercurial woman, make the fateful decision to risk her life by venturing to Mike's Grocery Store, where the parking lot was covered in snow and the deleterious conditions unquestionably apparent. Not surprisingly, Barbara fell while endeavoring to enter the store and suffered injuries that any reasonable person would have foreseen. As such, and as described infra, Barbara’s injuries are ipso facto the result of her negligence and the complaint should be dismissed.
Again, the first example is not perfect, but the point should be obvious. The second example is about as bad as it gets.
5. In most instances, do not cite cases in the preliminary statement.
Some may disagree with this point, but in my view, the preliminary statement should provide a concise and compelling overview (and roadmap) of your arguments, including the facts that support granting the relief you seek. Citing cases can disrupt the flow and is arguably unnecessary because the legal argument section is where you will rely on case law to expand upon and further support your position.
*For an additional and helpful discussion of the preliminary statement, see Jayne T. Woods' excellent post, dated May 9, 2023, titled "Should I include a stand-alone "introduction" section in my brief?"
May 28, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)
Tuesday, May 2, 2023
Legal Communication and Rhetoric: JALWD Turns 20
The journal, Legal Communication and Rhetoric: JALWD, (formerly the Journal of the Association of Legal Writing Directors) will publish its twentieth volume this year. The journal has this mission statement:
The journal is dedicated to encouraging and publishing scholarship (1) focusing on the substance and doctrine of legal writing. Legal writing is broadly defined to include many types of writing in a lawyering setting; (2) grounded in legal doctrine, empirical research, or interdisciplinary theory; and (3) accessible, helpful and interesting to all “do-ers” of legal writing: attorneys, judges, law students, and legal academicians. Published articles are intended to reach all of those audiences.
The journal regularly includes articles that appellate practitioners will found helpful and it publishes articles written by practitioners as well as academics. Here are just a few examples:
- Raffi Melkonian, Thoughts and Worries About Appellate Practice Post-Pandemic, 19 Legal Commc’n & Rhetoric 129 (2022)
- Stephen Boscolo, Using Judicial Motives to Persuade Judges: A Dramatistic Analysis of the Petitioners’ Brief in Lawrence v. Texas, 17 Legal Commc’n & Rhetoric 103 (2020)
- Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
- Barbara K. Gotthelf, The Lawyer’s Guide to Um, 11 Legal Commc’n & Rhetoric 1 (2014)
- Stacy Rogers Sharp, Crafting Responses to Counterarguments: Learning from the Swing-Vote Cases, 10 Legal Commc’n & Rhetoric 201 (2013)
- Scott Fraley, A Primer on Essential Classical Rhetoric for Practicing Attorneys, 14 Legal Commc’n & Rhetoric 99 (2017)
You’ll find a complete archive of the journal here Legal Communication & Rhetoric: JALWD
May 2, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (0)
Sunday, April 30, 2023
Succeeding in the 1L Year
Recently, several of my undergraduate students who are attending law school next semester expressed anxiety and uncertainty about the first year. Certainly, these feelings are normal and shared by many incoming first-year law students. But this need not be the case. Below is the advice that I gave to my students as they prepare to enter law school.
1. Don’t focus on succeeding in class; focus on succeeding on the exam.
In law schools, many professors use the Socratic Method, in which they question law students regarding, for example, the facts, holdings, and reasoning of particular cases. Many incoming law students fear the Socratic Method, worrying that they will embarrass themselves in front of the class. As such, these students often spend hours preparing for class and briefing cases.
That is the wrong approach.
At the overwhelmingly majority of law schools, your performance in class means absolutely nothing. Quite frankly, none of your fellow students care about how you perform in class. They are just relieved that they weren’t the one that the professor called on. Furthermore, don’t be impressed by the “gunners,” namely, those who talk excessively in class or ask what may appear to be incisive questions. They usually do not get the best grades – or even good grades. And your grades and class ranking, not your performance in class, are, by far, the most important factor in determining your job prospects upon graduation.
This doesn’t mean, of course, that you shouldn’t be prepared for class. But you should be aiming for a merely average, not an exceptional performance because your time should be dedicated to far more important matters.
Specifically, from day one, you should be focused on preparing for the final examination, which in most law school’s doctrinal courses determines your final grade.
How do you do that?
First, learn how to take a law school exam. To do so, purchase the Legal Essay and Essay Writing primer, which is available at www.leews.com. This program will teach you how to draft an effectively organized and persuasively presented answer. It will teach you CRAC or, as some professors prefer, IRAC, which will ensure that your answer is structured properly.
Second, take practice exams – under timed conditions. Doing so will simulate what you will face when taking the final exam and, ultimately, maximize your chance of obtaining a high grade. Additionally, review model answers to those exams, including those written and graded by your professor, to learn what constitutes an outstanding answer.
Third, don’t brief cases. Instead, purchase commercial outlines and other instructional materials, such as Emmanuel’s Law School Outlines and Joseph Glannon’s Civil Procedure coursebook. Why? Because you need to identify the relevant rules of law that govern the resolution of particular legal disputes, and because you need to know how to apply those rules to the novel fact pattern that a final examination will present. In other words, the facts of the cases you read during the semester are ultimately irrelevant. Thus, briefing those cases is an unnecessary waste of time.
Fourth, draft an outline that concisely summarizes the legal rules for each topic that you have studied. Do not draft a 120-page outline that summarizes the facts and holdings of every case. Rather, draft a twenty-page outline that contains only the relevant legal rules because those rules are what you will need to know for the final exam.
- Don’t worry about how you perform in class.
- Purchase the Legal Essay and Essay Writing primer.
- Take practice exams.
- Don’t brief cases.
- Purchase commercial outlines.
- Draft your own outlines.
Now, many law professors will tell you the opposite in law school. They may tell you, for example, not to purchase commercial outlines. Don’t fall for it. If you follow the approach outlined above, you will improve your critical thinking skills and maximize your chances of success in the first year.
2. Membership on Law Review (or at least a law journal) matters to employers.
At many law schools, law review membership is typically reserved for students who graduate in the top 10% of their class after the first year or who gain membership through other means, such as a writing competition.
To be sure, employers value law review membership because it signals to them that the applicant is a high-quality student. Thus, strive for membership on your law review or, at least, on a specialized journal at your law school.
3. Improve your writing and critical thinking skills.
Excellent writers and critical thinkers make excellent lawyers. From day one, focus on developing your persuasive writing skills and focus on gaining experience in drafting the most common litigation and transactional documents. Law firms and clients value immeasurably graduates who can write persuasively and whose analytical skills are second to none.
4. Develop relationships with your peers and professors.
Employers are not simply looking for quality law school graduates. They want to hire good people. No one likes a jerk, an unbearable narcissist, or someone who just can’t seem to shut up.
Put simply, your reputation is critical to your success.
As such, conduct yourself with class. Be honest. Be nice. Have integrity. Support your classmates. Listen more than you talk. Don’t gossip. Don’t base your self-esteem on what grade you received in Torts. And realize that there is so much more to life than the law.
Additionally, get to know your professors. Schedule an appointment with them during their office hours to introduce yourself, to receive feedback on an assignment, or to ask questions about the practice of law. Most importantly, if you need help, ask for it.
5. Develop a strong mindset.
In law school, there will be times when you will fail. There will be times when you fail to live up to your expectations. And there may be times when, as in life, you experience unfairness.
But that does not determine your destiny. Failure is a good thing because it enables you to learn lessons that will enhance your growth as a lawyer and as a person. Not meeting your expectations can teach you what you need to do differently in the future to achieve the result you desire. And unfairness can teach you the value of justice.
Indeed, your choices, not your circumstances, determine your destiny; how you respond to adversity is critical to whether you achieve failure or success. Put simply, how you think impacts what you believe and, ultimately, what you do.
So be sure to focus on both your professional and personal development in law school. Doing so will enable you to be successful -- and happy.
April 30, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (0)
Saturday, April 22, 2023
Comments Against Angel Reese Call Us to Check for Bias in Our Writing
As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester. Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias. Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express. While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing.
One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year. Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University. These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game. Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails. Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop. In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”
The difference: Clark is white, while Reese is Black. Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.
As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes, https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023). Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.” Id.
Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents. Sultan explained: the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023). “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.” Id.
Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work. For example, he described what he called stereotypes of sports as:
When Black players are aggressive, and talk trash, they are thugs and animals.
When white players are aggressive, and talk trash, they are passionate and fiery.
This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"
What can we learn from this incident to catch less obvious bias in our own writing? The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention. One shorter answer: many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias. Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too. There are many thoughtful ideas on addressing bias in our legal publications. For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).
I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose. My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.
April 22, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Tuesday, April 18, 2023
Demeanor in the virtual courtroom
The United States Supreme Court provides counsel with a "Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States." In that guide, counsel can learn how they should dress (conservative business dress in traditional dark colors), where they should sit, how they should move to and from those seats, how they should address the justices ("justice," and never "judge"), and so on. Similarly, in moot court, there is a category on most ballots labeled "courtroom demeanor," where fledgling appellate advocates are judged in how they comport themselves in court.
In the trial world, counsel is often reminded that the jury is always watching. Anecdotes abound. One attorney, who represented a car manufacturer at trial, was seen driving a car manufactured by another company. The jury decided he did not believe in his client and penalized him at trial. Another attorney told the jury in voir dire about his wife and family. The jury noted he was not wearing a wedding ring, and decided he was a liar. Eye rolls, sighs, and disrespect shown in a multitude of ways are blamed for countless lost cases.
But for some reason, when appearing virtually, many lawyers forget that demeanor matters. At one recent matter, I saw opposing counsel sighing, rolling eyes, getting up, getting snacks and water, and laughing with staff, all on camera, and all while opposing counsel, witnesses, and even the judge were speaking.
I get it. Having a camera on you for hours desensitizes you to the technology. If you don't have your camera shown, in particular, you can quickly forget that you are seen. But most counsel I know use "gallery view" in their zoom or other virtual software, as do most judges, so that not just the speaker is shown. And just like in the real courtroom, your behavior on that screen matters.
Credibility is the coin of persuasion. Why waste that credibility by acting poorly on screen? And while the behavior I described above was at a hearing, I have seen similar behavior during oral argument, when the justices are going to go back into chambers (virtually, perhaps, or in person), where you should hope they will discuss the merits of your argument, and not the content of your character writ large on their screens.
So please, even when appearing virtually, remember that demeanor matters. And don't forget to wear your conservative business dress in traditional dark colors.
(image credit: Image created in Bing Image Center, Powered by DALL-E AI image generator, using the prompt "attorneys behaving badly at counsel table, in the style of Thomas Nast.")
April 18, 2023 in Appellate Advocacy, Legal Ethics, Legal Profession, Moot Court, Oral Argument, Rhetoric, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Saturday, April 15, 2023
Why Paul Clement Is So Good
Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.
As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.
No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.
3. Conversational tone
Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.
Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”
It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.
4. Integrity and credibility
Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.
As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”
Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.
6. Answering judges’ questions directly and effectively
One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so. An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).
Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments.
 Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School
 Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag
April 15, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Saturday, April 1, 2023
The Trump Indictment
Donald Trump has been indicted. Although this is not a surprising development, it is not a good day for the rule of law or for public confidence in our institutions.
To begin with, a grand jury indictment is not nearly as significant as some in the media would have you believe. As the saying goes, grand juries would indict a “ham sandwich” because the threshold for securing an indictment is not high, and the defense’s ability to test the prosecution’s case is limited. Furthermore, the investigation occurred in New York City, where liberals substantially outnumber conservatives, and where Trump is, to put it mildly, not admired. When you combine these factors with a district attorney – Alvin Bragg – who seems hellbent on indicting Trump (as evidenced by his public statements and legal theory) you have the perfect storm for an indictment that appears more political than principled.
Indeed, Bragg appears to care more about convicting Trump than addressing the approximately 22% increase in various crimes in New York City. As Harvard Law Professor Dershowitz, who did not vote for Trump, explains:
When a district attorney who ran as a Democrat and promised to “get” Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.
Put simply, the case against Trump is not strong. In fact, if media reports are correct about the charge Trump is facing, it is incredibly weak. As George Washington law professor Jonathan Turley states, Bragg “is attempting to bootstrap [a] federal crime into a state case,” and “if that is the basis for the indictment … it’s illegally pathetic.” Likewise, former Whitewater deputy counsel Sol Wisenberg characterized the legal case against Trump as “preposterous.” Even some liberal commentators agree that the case against Trump is not strong. For example, Elie Mystal asserts that “the odds that the path to real justice, let alone prison time, runs through the Manhattan DA’s office still seem very, very long.”
Specifically (and again, if media reports are correct), the charge against Trump is falsifying business records, which requires, among other things, an intent to defraud. The legal theory, apparently, is that Trump falsified business records (characterizing them as legal expenses) when reimbursing Michael Cohen for paying Stormy Daniels $130,000 to conceal Daniels’ affair with Trump (to be clear, paying “hush money” to another is not, in itself, a crime). In New York, this is a misdemeanor, and it only becomes a felony “if it was in service of another crime,” which Bragg allegedly “posits is a [federal] campaign finance violation.”
Importantly, the Southern District of New York, which investigated this matter, declined to prosecute the case. Also, former Manhattan District Attorney Cy Vance, did not pursue an indictment. And for good reason. Why would a prosecutor try to convict a former president for a misdemeanor, particularly where the Southern District of New York declined to prosecute, the case is so weak, and where doing so would appear politically motivated?
None of these factors seem to matter to Bragg, a Democrat who in his campaign for Manhattan District Attorney promised to focus on investigating Trump, stating that it “merits the attention of the DA personally.” Apparently, Bragg is attempting to connect Trump’s alleged misdemeanor-level misconduct to a federal campaign finance violation, which is a felony, by alleging that the payments to Cohen constituted an illegal contribution to the Trump campaign.
Such a creative and novel legal approach suggests that Bragg is searching for some way, however untenable, to bring a felony charge against Trump. But it is unlikely to succeed. As Mark Pomerantz, a former district attorney, stated, Bragg will “have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.” In other words, the “intent to defraud” must include “an intent to commit another crime or to aid or conceal the commission thereof.” That alone will be difficult to prove, as Trump may argue that the payments were intended to prevent his wife Melania from discovering the affair, not to cover up another crime (an illegal campaign contribution).
Furthermore, if reports from the media are accurate, the primary witness for the prosecution will be Michael Cohen, a disbarred lawyer who pled guilty to, among other things, tax fraud, who served time in prison, and who has lied countless times, including before Congress. If you doubt this, listen to the statements by Robert Costello, who testified recently before the grand jury. Also, one must wonder how Trump can be prosecuted for a federal campaign violation in New York state court, why such a prosecution should be pursued when the Southern District of New York declined to do so, and where the optics of such a prosecution suggest a political motive.
Such creative lawyering (tying a state law misdemeanor to a federal felony), rather than being a legitimate purpose of the criminal justice system, suggests that the Bragg wants to weaponize the legal system to “get” Trump. As Dershowitz explains:
This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.
Simply put, this is a weak case that appears as politically motivated as it gets. Indeed, it is quite concerning that, as Bragg has reduced 52% of felony charges in New York to misdemeanors, he now seeks to raise Trump’s alleged crime from a misdemeanor to a felony. Perhaps Bragg’s personal attention should be devoted elsewhere, particularly given the 22% rise in certain crimes in New York City.
Ultimately, no matter what you think of Trump, everyone should, hopefully, believe that the law should be applied in an equal and even-handed fashion. Think about it: if the defendant were anyone other than Donald Trump, would Bragg be pursuing this?
Of course not.
Well, maybe if it were Richard Nixon.
In essence, Bragg is going after the person (Trump), not the crime. That, in a nutshell, is the point – and the problem.
After all, let’s be honest about what is happening here.
Bragg probably despises Trump. Furthermore, when (and before) Donald Trump was elected in 2016 as an anti-establishment candidate, the mainstream media hated him. Indeed, the mainstream media, which has as much, if not less, credibility than Michael Cohen, did nearly everything in its power to discredit and, quite frankly, destroy Trump, as evidenced by, among other things, the now-debunked allegations of Russian collusion.
Additionally, the establishment, including individuals such as James Comey and Peter Strzok, hated him. Furthermore, universities, which are overwhelmingly liberal and who employ professors who believe that diversity of thought is more deleterious than the coronavirus, have almost uniformly condemned Trump and unapologetically rejected a free marketplace of ideas. If you doubt this, look at what happened to Fifth Circuit Judge Stuart Kyle Duncan at Stanford Law School, where students and Tirian Steinbach, the Associate Dean of Diversity, Equity, and Inclusion, shouted down Duncan for views that they did not share. Or observe the circus-like shenanigans of students at Yale Law School, where they ridiculed Kristen Waggoner, an attorney and Supreme Court litigator. The commitment to diversity, equity, and inclusion (and free speech) obviously exists only in the abstract at these schools.
The consequences that Trump’s prosecution will have to our institutions – and the rule of law – will be substantial. The legitimacy of our institutions depends in substantial part on the perception that our elected officials apply the law equally, fairly, and even-handedly, without regard to political affiliation or personal animus. If the rule of law is perceived as a political weapon (see, e.g., North Korea, Russia), the law itself will be reduced to nothing more than a tool for politicians to use against those who threaten their power. And there is no bigger threat to liberty and equality than a rule of law that is administered based on politics rather than principle, and opportunism rather than objectivity. The rule of law – and the American people – demand much more and should accept no less.
Put differently, people need to believe that you will never be prosecuted or targeted based on what you believe, what your political affiliation is, or who you are. It should be based on what you did, and whether those actions would result in a prosecution for most, if not all, individuals, regardless of status, who engaged in similar conduct. That is simply not the case here. If the defendant were Joe Biden rather than Donald Trump, there would be no prosecution.
It's no wonder why the American people have lost faith in our institutions, academics, and elected leaders. Years ago, individuals such as Walter Cronkite, Robert C. Maynard, and Peter Jennings exemplified the standards to which journalism – and our institutions – should aspire. Now, the American people are treated to the folks at CNN, Fox News, and MSNBC, few of whom can even remotely compare to the journalistic integrity that the former individuals embodied. Even a few seconds of listening to Bryan Stelter or Joy Reid, or Glenn Beck underscores this point.
Indeed, Bragg’s conduct – and the conduct of many political leaders, prosecutors, and pundits – leads to one ineluctable conclusion.
They are political actors.
Their goal is to advance a political agenda.
And they don’t even hide it anymore.
As Professor Dershowitz stated, “[w]hat matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.”
Unfortunately, this nonsense is not without precedent.
In 1998, the Republicans spent millions of taxpayer dollars to impeach Bill Clinton (in the House of Representatives) over a consensual affair (and alleged perjury and obstruction of justice) that, while not, to put it nicely, the best exercise of judgment, could not reasonably have been construed as a high crime and misdemeanor. And Ken Starr did everything in his power to degrade and humiliate Clinton with a report laden with salacious details that no sensible person would have included. Well, here we are again: a criminal indictment against a former president and leading candidate for the Republican Party’s nomination based on an affair with a porn star. Not to mention, the United States Supreme Court manufactured out of thin air a right to abortion in Roe v. Wade, and approximately fifty years later, overturned Roe for no other reason than that the political persuasions of the Court had changed.
What’s more, it is nearly impossible to have a civil conversation with those with whom you disagree or to debate issues with others in an atmosphere of civility and respect. Alvin Bragg’s decision makes this situation worse, not better and makes the country more divided, not united. Put simply, Trump’s indictment is an unsurprising, quite unoriginal, and obviously predictable continuation of this unfortunate chapter in American history.
Ultimately, almost anyone can respect the rule of law, promote diversity of thought, and remain committed to fairness when they are surrounded by people who agree with them. But true leaders – and people with character and integrity – have the courage to be fair to every citizen, particularly the ones that they despise, just like the First Amendment depends on tolerating speech that you find offensive.
That is what the rule of law – and a society dedicated to liberty, fairness, and equality – demands, and what every citizen deserves.
That includes Donald Trump.
 Toni Messina, Criminally Yours: Indicting a Ham Sandwich (Feb. 8, 2016), available at: Criminally Yours: Indicting A Ham Sandwich - Above the Law
 Of course, this is based on the media reports regarding the legal charges that Trump will face. The indictment may contain facts and charges that make the case stronger.
 Alan Dershowitz, Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution (March 31, 2023), available at: Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
 Steven Nelson, Democrats Giddy at Trump Indictment, But Legal Experts Warn Case is Weak (March 30, 2023), available at: Democrats giddy at Trump indictment, but legal experts warn case is weak (nypost.com)
 See Elie Mystal, Donald Trump Has Been Indicted/ Don’t Get Your Hopes Up (March 30, 2023), available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation
 National Review, The Reckless Trump Indictment (March 31, 2023), available at: Reckless Donald Trump Indictment | National Review (emphasis added) (brackets added).
 See Mystal, supra note 6, available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation
 Jeremy Herb, Kara Scannell, and John Miller, Inside the Long and Winding Road to Trump’s Indictment (April 1, 2023), available at: Donald Trump: Inside the long and winding path to a historic indictment | CNN Politics
 See Kara Scannell, New Manhattan DA Alvin Bragg Pledges to Focus on Trump Investigations (Dec. 20, 2001), available at: Alvin Bragg: New Manhattan DA pledges to focus on Trump investigations | CNN Politics (emphasis added).
 Jose Pagliery, Manhattan DA Insiders Worry the Trump Hush Money Case is Weak Sauce (March 29, 2023), available at: Manhattan District Attorney Insiders Worry the Trump-Stormy Daniels Alvin Bragg Hush Money Case Is Weak Sauce (thedailybeast.com)
 Mark Joseph Stern, The Big Problem with the Trump Indictment (March 30, 2023), available at: Alvin Bragg’s indictment of Donald Trump is full of challenge and promise. (slate.com).
 See Laura Nahmias and Daniel Samuelsohn, Michael Cohen Sentenced to 3 Years in Prison (Dec. 12, 2018), available at: Michael Cohen sentenced to 3 years in prison - POLITICO
 See Bart Jansen and Kevin Johnson, Lawyer Assails Trump Grand Jury Witness as ‘Liar on Revenge Tour,’ (March 20, 2023), available at: Robert Costello undercuts Michael Cohen in Trump grand jury probe (usatoday.com)
 Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
 See Melissa Klein, NYC Convictions Plummet, Downgraded Charges Surge Under DA Bragg (Nov. 26, 2022), available at: Convictions plummet, downgraded charges surge under Manhattan DA Bragg (nypost.com) (emphasis added).
 See Chelsia Rose Marcius and Eh Shanahan, Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell (January 5, 2023), available at: Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell - The New York Times (nytimes.com)
 See Tony Perkins, The Numbers that Prove How Much the Mainstream Media Hate Trump (Dec. 14, 2017), available at: The Numbers That Prove How Much the Mainstream Media Hate Trump (frc.org)
 See Philip Ewing, Mueller Report Finds No Evidence of Russian Collusion (March 24, 2019), available at: Mueller Report Finds No Evidence Of Russian Collusion : NPR
 See Stuart Kyle Duncan, My Struggle Session at Stanford Law School (March 17, 2023), available at: My Struggle Session at Stanford Law School - WSJ
 See Bradley Evans, ADF General Counsel Harassed at Yale Law School Event (March 21, 2022), available at: ADF General Counsel Kristen Waggoner Harassed at Yale Law School Event | Alliance Defending Freedom (adflegal.org)
 Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).
April 1, 2023 in Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (5)
Saturday, March 25, 2023
Revisiting George Orwell and Good Writing
This semester, I am lucky enough to be teaching a seminar I designed on bias in legal analysis and writing. The class has been a delight, and I am impressed every week by my thoughtful and dedicated students.
In one of our sessions, I proposed using George Orwell’s writing rules, along with his broader concerns with “Doublespeak” and “Big Brother,” to add clarity and remove bias from writing. Several of my students have included these ideas in the class papers they are drafting, and I hope these tips help you draft as well.
In his pre-1984 essay, Politics and the English Language, Orwell proposed six rules on using English, and he repeated these in later works as well. Many commentators have discussed using the rules for clarity, but I believe we can also combat bias with these ideas.
Here are Orwell’s rules, as summarized by Judith Fischer in her article Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129, 135 (2007):
(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print.
(ii) Never use a long word where a short one will do.
(iii) If it is possible to cut a word out, always cut it out.
(iv) Never use the passive where you can use the active.
(v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.
(vi) Break any of these rules sooner than say anything outright barbarous.
See also Austin Wayne Schiess, Writing a Brief the George Orwell Way, 14 App. Advoc. 6, 6-6 (2001).
How can we use these rules in appellate writing?
- Avoid Cliches. Fischer notes: “Think out of the box” and “avoid cliches like the plague.” 68 Mont. L. Rev. at 137. But seriously, some cliches are racist and many are unclear. Remove them from your writing as much as possible.
- Prefer Shorter Words. I am old enough to remember when courts imposed motion and brief page limits, long before word limits. I recommend reading your own work as if you have page limits and word limits. This can help you remove legalese, redundant wording, and unneeded long terms. In his blog, Demian Farnworth suggests practicing by using only monosyllabic words. The monosyllabic approach can add many words and decrease clearness, but it is a fun way to practice writing with shorter terms. See https://copyblogger.com/short-sentences/ (Oct. 19, 2015).
3. Be Concise & 5. Avoid Jargon. (I’ve already blogged about Rule 4, Use Active Voice, often.) Use concision as an enemy of bias and obfuscation. As Justice Ginsburg reminded us, our readers “simply don’t have time to ferret out one bright idea buried in too long a sentence.” Remarks on Appellate Advocacy, 50 S.C. L. Rev. at 567 (1999). One way to practice being concise and removing jargon is by reviewing any manual for a small appliance in your home. Review these manuals for lengthy clauses and odd technical jargon. My family’s favorite is our toaster manual, which often uses five words where one will do, and adds confusing technical details like “LED light indicator surround ring” for what is in fact the “toasting” light. Finding these lengthy and confusing terms around the house will help you edit for concision in your briefing.
- Use Common Sense--Break Any of these Rules If they Reduce Clarity. Recently, I learned there is reasonable debate about exactly what Winston Churchill said regarding ending a sentence in a preposition. Nonetheless, we know he said something close to: “This is the sort of English up with which I will not put.” See https://brians.wsu.edu/2016/11/14/churchill-on-prepositions/. We can follow our own common sense, like Churchill and Orwell. As another example, sometimes one longer clause reads better than a series of short, choppy sentences. Let’s follow rules on clarity above all else.
Are these rules enough? Orwell did not think so, as evidenced by his concern over “Doublespeak” and obfuscation. To follow Orwell, therefore, we should make sure our words say what we mean. While this sounds simple, any experienced appellate writer knows editing takes time and effort. I hope Orwell’s rules help in this editing task.
March 25, 2023 in Appellate Advocacy, Appellate Practice, Books, Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)
Tuesday, March 21, 2023
More than "Frenemies."
I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”
I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.
Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.
The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”
I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.
How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.
So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.
That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.
(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).
March 21, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)
Monday, March 20, 2023
GPT-4 Just Passed the Bar Exam. That Proves More About the Weakness of the Bar Exam Than the Strength of GPT-4.
It's official: AI has passed the Uniform Bar Exam. GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers.
"Guess you're out of a job," my wife said when I told her the news.
Maybe she's right--unless, of course, the bar exam isn't actually an effective measurement of minimum competence to practice law.
That's the open secret of the legal profession. Bar exams do test a small handful of core legal skills, such as critical reading and basic legal analysis. But they're downright abysmal at measuring the multitude of skills that separate competent and incompetent lawyers, such as legal research, writing ability, factual investigation, crisis response, communication, practice management, creative problem solving, organization, strategic planning, negotiation, and client management.
I am hardly the first commentator to draw attention to this issue. In Shaping the Bar: The Future of Attorney Licensing--which should be required reading for anyone interested in the attorney-licensing conundrum--Professor Joan W. Howarth says this:
Bar exams are both too difficult and too easy. The exams are too easy for people who excel at multiple-choice questions. Wizards at standardized tests can pass the bar with little difficulty, perhaps with a few weeks spent memorizing legal rules, without showing competence in a greater range of lawyering skills or any practice in assuming professional responsibility.
And, bar exams are too difficult for candidates who do not excel at memorizing huge books of legal rules. An attorney would be committing malpractice by attempting to answer most new legal questions from memory without checking the statute, rules, or case law. Leon Greene, the dean of Northwestern Law School in 1939, observed that "there is not a single similarity between the bar examination process and what a lawyer is called upon to do in his practice, unless it be to give a curbstone opinion." The focus on memorization of books of rules was silly in 1939, but today it is shockingly anachronistic, as attorneys asked for "curbstone opinions" would be carrying a complete law library on their phones. Extensive rule memorization makes bar exams less valid, meaning that they test attributes not associated with competence to practice law. Law graduates who would be great lawyers--too many of whom are people of color--are failing bar exams because they cannot drop everything else for two months to devote themselves to memorizing thick books of rules.
Against this backdrop, is it really a surprise that a literal learning machine beat 90% of the human test takers?
Predictably, the National Conference of Bar Examiners quickly issued a press release once the news broke about GPT-4 acing its exam. The NCBE said that human attorneys have unique skills, gained through education and experience, that "AI cannot currently match." And, on that score, I wholeheartedly agree. But that raises the question many of us have been asking for years: If "skills," "education," and "experience" (not mass memorization, regurgitation, and fact-pattern recognition) are what set the best lawyers apart, why aren't we using those qualities to measure minimum competence?
Philip Seaver-Hall is a litigation attorney at Knox McLaughlin Gornall & Sennett, P.C. The views expressed in this post are the author's alone and are not necessarily shared by the Knox Law Firm.
March 20, 2023 in Books, Current Affairs, Law School, Legal Profession, Science, Web/Tech, Weblogs | Permalink | Comments (0)
Saturday, March 18, 2023
ChatGPT and Legal Writing
ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.
The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”
Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests. Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.
What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.
1. Law students need to learn how to think critically.
Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.
ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”
That, again, is the point – and the problem.
Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.
Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.
2. Law students need to learn how to write competently and persuasively.
It is no secret that judges and lawyers often criticize law graduates for their poor writing skills. The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.
This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.
To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.
To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.
Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’
Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work. This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.
Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court. As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.
Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.
Simply put, you cannot replace an intelligent, thinking human being.
 See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business
 Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.
 Kelly, supra note 1.
 See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)
 Kelly, supra note 1.
March 18, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (2)
Thursday, March 2, 2023
The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response
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.
The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response
I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive. So, I typed this as a prompt for ChatGPT:
I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?
Here’s what ChatGPT replied:
Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.
One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.
At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.
This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.
Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.
Analyzing ChatGPT’s Response
Not a bad response, generally speaking. But what has ChatGPT revealed about itself? Here’s a brief analysis of some things we can learn about ChatGPT from this response.
ChatGPT Might Assume Too Much About the Reader
ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is. (And later it assumes that the reader knows what a “language processing model” is.) If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:
NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.
So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT.
ChatGPT Thinks of Itself as “Art”
I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric. This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science. Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion. And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts. (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)
If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists. That is, as do artists, ChatGPT brings a particular perspective to its responses. As such, ChatGPT’s response is a form of art—and only one of many responses available. Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many. Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.
ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?
Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user. It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.” ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.
Why might ChatGPT sound so confident? Maybe ChatGPT’s confidence comes from the way it generates responses. ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context. Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.
Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully. If we read closely, we see that the response doesn’t really explains what “high-quality content” means. On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses. This aspect of ChatGPT, then, is not “high-quality.” Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth. For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield. For example, one would not want to rely at face value on what ChatGPT says about some point of law. (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)
On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.” You can prompt ChatGPT to write in a particular style—even your own! You can request it write content in the style and organization of a brief or a motion, and it will comply. You can ask it to assist in correcting your grammar. It’s pretty good at offering examples of different genres, styles, and tones of writing. This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.
But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response. In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption? Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response? ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.
ChatGPT Knows Its Rhetorical Limits
Even though ChatGPT is confident in its capabilities, it admits that it has limits. Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission. To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness. So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.
ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data. So, that raises the problem of “garbage in,” “garbage out.” In other words, the quality of ChatGPT’s responses is only as good as the data it can access. That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on? The only way to know is to already have the knowledge essential to evaluating the response.
In the End, ChatGPT is Deferential about Its Writing
ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience. It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights. In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved. Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.
ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge! Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:
- Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
- Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses. In particular, evaluating the appropriateness of the response for an audience is essential. As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous. At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
- Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact. Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text. (Check out Ian Bogost’s article insightfully concluding that “ChatGPT . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
- Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact. Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
- Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience. No one—not even a computer—knows your clients, your arguments, and your audience better than you do. Rely on your own judgment about competent writing.
What are your thoughts?
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-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. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected]
March 2, 2023 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)
Monday, February 27, 2023
Advice for Law Students on Oral Argument
After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.
1. Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.
2. Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.
3. Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.
4. Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.
5. Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.
6. Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.
7. Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony. They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.
8. Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).
February 27, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, Moot Court, Oral Argument | Permalink | Comments (1)
Saturday, February 18, 2023
The 2023 Justice Donald L. Corbin Appellate Symposium
On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law. This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts. The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock. You can tour the Clinton Library too!
The impressive lineup this year includes many members of the appellate bench:
- A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
- Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
- A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and Justice Piper D. Griffin of the Louisiana Supreme Court;
- Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
- An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.
Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors.
You still have time to register, and you can find all of the details here: https://www.pulaskibarfoundation.com/corbinsymposium.
This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium. Plus, if you have never been to Little Rock, I highly recommend a visit. Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country. See you there!
February 18, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Saturday, February 11, 2023
Rethinking First Amendment Jurisprudence
The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.
But shouldn’t there be a limit?
Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?
The answer to both questions is yes.
Think about it:
- Should people be permitted to hurl racist slurs at minorities? No.
- Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
- Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
- Should people be allowed to depict horrific acts of animal cruelty? No.
- Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
- Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
- Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
- Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.
Such speech should be banned everywhere and in any circumstance for three reasons.
First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.
Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.
This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever. Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.
Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection. Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.
Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.
The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse. In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.
These decisions were wrong.
The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.
Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.
If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.
 413 U.S. 15 (1973); 395 U.S. 444 (1969).
 485 U.S. 46 (1988).
 562 U.S. 443 (2011).
February 11, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Wednesday, February 8, 2023
Paragraphs and Pilcrows
This blog has featured paragraph-pertinent musings before. Today I hope to share a little about the petite pilcrow, offer some guidelines for proper paragraphing, and provide a tip for formatting with pilcrows in legal writing.
What is a pilcrow?
If you are an attorney, you have likely been using the pilcrow for years. I certainly have, but until today I did not know its name (how impolite!). The pilcrow is the paragraph symbol: ¶.
I stumbled upon a fascinating article on the origin of the pilcrow. According to the article, "pilcrow" evolved from the very fitting Greek word paragraphos for "write beside." It iterated through French (paragraph) and Middle English (pylcrafte) to "pilcrow."
The symbol was originally written on a page to signal changes in topic or speaker, similar to its function today. It started out looking like a K, then morphed into a C in a nod to "chapter" differentiation. Ultimately scribes added a line to the C to distinguish the mark from the rest of the sentence, then the symbol stretched and straightened into the ¶ we know today.
The symbols became quite ornamental, requiring extra time for decoration at the end of a written document, and when the scribes ran out of time to finish the decorating, they left out the pilcrows altogether. That is why we generally use pilcrows in legal writing only to separate statutory paragraphs and cite complaint allegations, not at the beginning of our paragraphs.
What is a proper paragraph?
If a pilcrow developed to separate speakers and topics, how do we mimic their function in our prose? Paragraphs should follow some basic guidelines in legal writing to make the document easiest to read and comprehend.
Contains an average of 150 words
As has been said, Bryan Garner recommends that paragraphs average about 150 words, and no more than 250 words. Some writers recommend three to eight sentences.
These are good rules of thumb. When your topic is complex or involves large or unfamiliar words, err on the side of fewer, shorter sentences in your paragraphs. Capitalize on readers' ability to process small chunks of information at a time and provide them necessary breaks in the word flow.
Conveys a distinct thought
Besides length, you can decide to start a new paragraph when you begin writing a distinct thought. While all thoughts in a brief should connect to the main idea and ultimately seek the same relief, slight variations in thoughts or angles of the argument should trigger new paragraphs. Cramming too much into one paragraph contradicts the small chunk principle and makes the reading a slog.
Has a topic sentence
In the same vein, every paragraph should have a topic sentence. The topic sentence signals what each paragraph is about and how it is different from the paragraphs before and after it. As you edit your writing, use your topic sentences to cut extraneous material from the brief. Legal writers should never aim to repeat themselves. Judges are intelligent folks. You need not say the same thing five different ways; once is sufficient.
Starts with a meaningful transition
Finally, while you need not repeat yourself when you have made your point, it is always beneficial to link distinct thoughts between paragraphs. Legal readers are looking for connections between concepts and logical through lines in your argument. Make those explicit.
How do I ensure my pilcrows never hang alone at the end of lines?
This is one of the easiest ways to clean up a brief before you even finish writing. You can eliminate lonely pilcrows hanging at the edges of lines of text by adding a nonbreaking space (CTRL + Shift + S) after every pilcrow. The nonbreaking space, which looks like a small open circle when you show formatting, holds the pilcrow and following number together (¶ 1).
You can even build in an automatic nonbreaking space every time you type a pilcrow using Word's AutoCorrect feature.
A. Insert > Symbol > More Symbols > Special Characters > Paragraph > Insert // Or type ALT + 0182
B. Insert > Symbol > More Symbols > Special Characters > Nonbreaking Space > Insert // Or type CTRL + Shift + S
Step 2: Copy those two characters (CTRL + C).
Step 3: File > Options > Proofing > AutoCorrect Options > Replace
Step 4: “Replace” box > Paste the two characters you copied (CTRL + P).
Step 5: Backspace over the nonbreaking space. Only one character should be in the box.
Step 6: “With” box > Paste the two characters again. Backspace over any additional space at the end. Only two characters should be in the box. One is your invisible nonbreaking space.
Step 7: OK
Presto! Proper paragraphs and partnered pilcrows in perpetuity.
February 8, 2023 in Humor, Legal Profession, Legal Writing | Permalink | Comments (0)
Monday, February 6, 2023
Should Courts Dispense With the Table of Authorities?
Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,
The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.
The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:
Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt.
Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand.
. . . .
Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.
Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:
Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.
First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.
Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.
Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.
Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).
I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).
Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:
Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated,
The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.
Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."
I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).
February 6, 2023 in Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (1)
Sunday, February 5, 2023
A Call for Law Over Politics
In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.
It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.
Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.
New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.
Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.
As Justice Anita Earl put it in dissent from the grant of reconsideration:
it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.
Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).
I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.
February 5, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Saturday, January 28, 2023
Implicit Bias Challenged, If Not Debunked
In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question. Below is a summary of the flaws in implicit bias theory.
1. The Implicit Association Test (IAT) is deeply flawed.
The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:
The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?
Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times. One commentator explains as follows:
The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.
Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.” To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.” Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”
2. There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.
Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’
Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”
3. There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit biases.
Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?
These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.
4. Implicit bias training is ineffective.
Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:
[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.
Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."
Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars. Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.
Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.
Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.
 Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today
 See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.
 See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)
 German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).
 Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.
 Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/
 Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea, PSYCH. TODAY (Dec. 2, 2017), https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
 Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American
 See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at: U.S. law students to receive anti-bias training after ABA passes new rule | Reuters
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:
It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.
 See Green and Hagiwara, supra note 12.
January 28, 2023 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)
Saturday, January 21, 2023
“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career
Happy 2023. I hope the new year is going well for all of you. As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled: “Read Everything.” My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again. Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things. You can read the order here: Dec. 30 opinion.
First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.” Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral. In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois. See Order at 3-20, 39-41.
Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.” Order at 33. As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed. Order at 3-20, 39-41.
As examples of various misconduct, the court explained: “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.” Order at 3. Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s “abdication of her responsibilities as counsel.” Order at 3-4.
For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations. See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order). In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.” Order at 9. Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.” Order at 10. In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.” Order at 10.
In the September 22 motions, Outley claimed:
Honorable Judge Feinerman did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.
But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’” Order at 10.
Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date. Order at 11-12. Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.” Order at 12.
Perhaps this admitted failure to read led counsel to “repeatedly transgress the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a
motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24. On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like: “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.” Order at 6. The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read. Order at 5-6, 24.
Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial. Order at 3, 4-5. In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.” Order at 3. The court concluded: “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.” Id.
As the court summarized: “It would be a substantial understatement to say that things did not go smoothly.” Order at 2. Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court. See Order at 5.
The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email. Cassens Weiss, supra.
Here’s to careful reading in 2023.
January 21, 2023 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)