Appellate Advocacy Blog

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

Monday, January 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 17, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Apologies for the late MLK day weekend post! 

US Supreme Court Opinions and News:

  • The Supreme Court has ordered quick briefing on the Obamacare challenge after nineteen states asked for a quick decision. Recently, the Fifth Circuit held that the individual mandate is unconstitutional but remanded the issue of severability, thus leaving the law in place for now. See report from The Hill and NBC.

  • The court has also agreed to hear (1) an administration appeal seeking to enforce federal law that would allow employers to get a religious exemption from the Obamacare requirement that health insurance cover a woman’s birth control (see report) and (2) a dispute involving whether Electoral College electors can break their pledges and support the popular vote winner (see report).

  • The Court refused to hear an appeal from three “Free the Nipple” activists after a New Hampshire city fined them for exposing their breasts in public. The appeal argued that banning female but not male toplessness is unconstitutional discrimination based on gender; the Supreme Court’s refusal to hear the case leaves the ban in place. See reports in NYPost, The Hill, and NYTimes

Federal Appellate Court Opinions and News:

  • The Seventh Circuit affirmed (after nearly 3 years) the lower court decision that required Indiana to list on birth certificates both mothers in same-sex marriages. The court held that after Supreme Court cases Obergefell v. Hodges and Pavan v. Smith, “a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” See decision at 7-8. The court ruled that the Indiana Code did just that and ruled that its operation was properly enjoined.  See reports from the Indiana Lawyer, BloombergLaw, and Slate.

  • The Eleventh Circuit upheld ex-US Representative Corrine Brown’s fraud conviction. The court rejected the argument that the trial court wrongfully removed a juror who claimed guidance from the “holy spirit” as to Brown’s innocence.  See the opinion and Florida Times-Union report.

  • The Fourth Circuit upheld an injunction barring the discharge of HIV-positive service members. The decision calls the rationale for not deploying HIV-positive service members “outmoded and at odds with current science.” See opinion and reports in The Washington Post and the AP.

  • Finally, the Fifth Circuit made headlines after a divided panel denied a trans-inmate’s request for the court to use female pronouns. See opinion and dissent (begins p. 12) and report from Washington Blade.

State Court news

The San Diego Superior Court tentatively awarded nearly $13 million to twenty-two women in a suit arguing that the women were exploited by porn producers.  The ruling holds that the women had been tricked into performing in pornographic videos and found the owners of the adult website liable for fraud and breach of contract.  See report in NYTimes, San Diego Union-Tribune, and RollingStone.

January 20, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, January 19, 2020

Ramos v. Louisiana: Do the Sixth and Fourteenth Amendments Require Unanimous Jury Verdicts?

In Ramos v. Louisiana, the United States Supreme Court will decide whether the Sixth Amendment requires unanimous jury verdicts. Specifically, in Ramos, by a vote of 10-2, a jury in state court convicted the defendant of murder. Currently, in criminal cases, only Oregon and Louisiana permit criminal convictions where the jury is non-unanimous. In both jurisdictions, a vote of 10-2 is sufficient to convict a defendant.[1]

The answer to the question presented in Ramos depends in substantial part on the text and purpose of the Sixth Amendment, relevant legal doctrine, and the Court’s precedent.

By way of background, the Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a … public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”[2] Additionally, under the incorporation doctrine, the Court has held that the Sixth Amendment’s right to a trial by an impartial jury, like most provisions in the Bill of Rights, applies to the states.[3]

Over the last several decades, the Court has clarified the nature and scope of the Sixth Amendment’s jury requirement. In Williams v. Florida, for example, the Court held that the Sixth Amendment permits six-member juries in criminal cases.[4] Subsequently, in Ballew v. Georgia, the Court held that juries cannot consist of less than six jurors.[5] Perhaps most importantly, in Apodaca v. Oregon, the Court held that, while the Sixth Amendment requires unanimous jury verdicts in federal cases, it does not require unanimous jury verdicts in state cases.[6] The Court’s decision in Apodaca is arguably anomalous because, when a provision in the Bill of Rights is incorporated against the states, the general rule is that the standards established at the federal level (e.g., unanimous jury verdicts) also apply to the states. In Ramos, the Court will confront this issue – and the continuing validity of Apodaca – when deciding whether jury verdicts at the state level must be unanimous.

Several considerations will be relevant to the Court’s decisions. Advocates of a unanimous jury requirement will likely argue that the Founders expected – and the English common law demonstrated – that the Sixth Amendment’s right to impartial jury encompassed a unanimity requirement. Additionally, relying on the historical record, advocates may assert that racial animus motivated Louisiana’s and Oregon’s adoption of a non-unanimous jury requirement.[7]

Conversely, opponents of a unanimous jury requirement may argue that the Sixth Amendment’s text is silent regarding the issue of unanimous jury verdicts, thus leaving this determination to the states. Furthermore, principles of stare decisis support upholding Apodaca and thus giving states the authority to determine whether to adopt a unanimity requirement for jury verdicts.

The Court’s decision is difficult to predict. On one hand, the Court may be sensitive to the argument that non-unanimous jury verdicts silence the voices of dissenting jurors and result in fundamentally unfair convictions, particularly against traditionally marginalized groups. Also, the Court may determine that a unanimity requirement is essential to ensuring the right to a fair trial. Indeed, empirical evidence has demonstrated that such a requirement “strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.”[8]

On the other hand, the Court may be reluctant, under the doctrine of stare decisis, to overturn Apodaca, particularly because at least two states have relied on Apodaca to adopt laws permitting non-unanimous jury verdicts. Moreover, the Court may be concerned regarding the implications of adopting a categorical rule requiring unanimous jury verdicts in criminal cases (at least for felonies). For example, what if a state decides to increase the number of jurors from twelve to eighteen? Would a vote of 17-1 in favor of a conviction violate the Sixth Amendment? What if a state law provided that a non-unanimous jury verdict of 11-1 was sufficient to convict a defendant? The Court will likely have to address these and other questions when deciding this case.

Ultimately, Ramos will likely be decided by a 5-4 or 6-3 margin and based on oral argument, it appears that the Court is leaning toward interpreting the Sixth Amendment to require unanimous jury verdicts.

 

[1] Robert Black, Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury Verdicts? (Oct. 9, 2019) available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts.

[2] U.S. Const., Amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145 (1968).

[4] 399 U.S. 78 (1970).

[5] 435 U.S. 223 (1978).

[6] 406 U.S. 404 (1972).

[7] Black, supra note 1, available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts

[8] Constitutional Accountability Center, Ramos v. Louisiana, available at: https://www.theusconstitution.org/litigation/ramos-v-louisiana/.

January 19, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, January 12, 2020

Great Writers Know When to Break the Rules

Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.

However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.

1.    You can end sentences with prepositions

As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:

Who are you referring to?

Versus

About whom are you referring?

The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.

Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.

2.    You can write a one-sentence paragraph

Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.

In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.

3.    You can use the passive voice

The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:

The rule was violated.

Versus

The Defendant violated the rule.

If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?

Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.

4.    You can use sentence fragments

A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:

Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.

The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.

5.    You can start a sentence with “and” or “but” (or other conjunctions)

Generally, you should not begin a sentence with “and” or “but.”

But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.

The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.

Versus

The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.

Which do you prefer? The first example both reads and flows better.

6.    You can split infinitives

Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:

To boldly go where no man has gone before.

Versus

To go boldly where no one has gone before.

The first example sounds and reads better.

7.    You can use “you” instead of “one”

Sometimes, it is effective to use “you” instead of “one.” Consider the following example:

If one prefers, one may appeal the committee’s decision within ten days.

Versus

You can appeal the committee’s decision within ten days.

The second example sounds better and thus results in more readable prose.

8.    You should frequently use profanity and vulgar language in your legal writing

I’m just kidding. Don’t ever do this!

Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.

January 12, 2020 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise.  As I like to tell my students, since I am not in charge of the world, I cannot offer more time.  However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.  

In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation.  As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’  In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.”  Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000). 

While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions.  For example, Professor Vitiello explains:  “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments.  A lawyer who lacks that skill cannot adequately represent her clients.”  Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006).  Similarly, Professor Hernandez reasoned:  the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.”  Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998). 

Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges.  While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible.  See id. at 74.

The advantages of off-brief oral argument translate well to written work.  Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).  A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches.  See generally Hernandez, 17 Rev. Litig. at 77.  

Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs.  Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows. 

For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client.  Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.

In my first-year classes, I similarly ask students to draft arguments for their opponents.  I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment.  Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments.  Students have shared with me how much they enjoyed being “forced to see the other side” this way.  And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time.  This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.

Have you used an off-brief technique to enhance your writing or teaching?  Feel free to share your ideas in the comments. 

January 12, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Friday, January 3, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Happy New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

  • Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

  • The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.

  • The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
  • Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here

Federal Appellate Court Opinions and News:

  • The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.

  • The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.

  • The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.

  • Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

January 3, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, December 29, 2019

Tips to Immediately Improve Your Writing Skills

Developing excellent writing skills requires time, practice, and repetition. As Justice Antonin Scalia once stated, “there is an immense difference between writing and good writing,” and “it takes time and sweat to convert the former into the latter.”[1] Indeed, developing excellent writing skills is a lifelong process; those who write effectively enhance the persuasive value of their arguments and maximize their chances of succeeding on the merits. Below are tips that will enable attorneys to quickly and significantly improve the quality of their writing.

1.    Eliminate the B.S.

Be sure to eliminate unnecessary words. These words add no persuasive value to your argument and they will likely distract or annoy the reader. Thus, you should eliminate words such as “very,” “entirely,” “only,” “really,” and “actually.”

Also, avoid adverbs, adjectives, and over-the-top language. These words do not enhance the quality of your writing or the strength of your argument. For example, do not say “The defendant ran extremely fast in the store.” Say, “The defendant sprinted into the store.”

2.    Outline your argument

 Before drafting a brief, outline your arguments, including the relevant facts that support those arguments. Doing so will enable you to assess whether the brief is organized effectively, flows well, and includes the relevant facts and legal principles.

3.    Write shorter paragraphs and focus on only one point

When drafting a legal document, such as a memorandum or brief, you should draft short paragraphs (e.g., three to five sentences in length). Long paragraphs can distract the reader and thus fail to keep the reader engaged. Indeed, imagine if you were reading a brief and on every page, you encountered a long paragraph that occupied the entire page. Would you want to keep reading?

Additionally, only discuss one point (or element of a legal argument) in a paragraph, and always begin a paragraph with a topic sentence. Thus, do not include multiple legal arguments (or standards) in a single paragraph because it will disrupt the flow and organization of your argument.

Relatedly, avoid block quotes unless absolutely necessary. Some attorneys reserve block quotes for information that they consider exceedingly persuasive or relevant. However, some judges do not read block quotes, which means that they will skip the passages that you consider most important.

4.    Use headings and subheadings

Heading and subheadings enhance the flow and organization of your argument. For example, the four elements of negligence are: (1) duty; (2) breach of duty; (3) direct and proximate causation; and (4) damages. Thus, when drafting, for example, a memorandum, you can organize your analysis as follows:

A.    Duty

B.    Breach of Duty

C.     Causation

        1.    Direct Causation

        2.   Proximate Causation

D.    Damages

When organized in this manner, your memorandum will flow effectively and the reader will easily follow the logic and flow of your analysis.

5.    Write shorter sentences

Shorter sentences engage the reader and keep the reader’s attention. Longer sentences do the opposite. Furthermore, short and direct sentences can effectively emphasize a particularly favorable fact or legal principle. Thus, as a general rule, avoid sentences that are over twenty-five words.

6.    Vary sentence length

Varying the length of your sentences keeps the reader’s attention. If your brief consists of excessively long sentences, the reader will likely become bored. And if you include only short sentences, your writing will be choppy and lack flow. Ultimately, therefore, to ensure that your brief flows effectively (and to maximize its persuasive value), vary the length of your sentences.

7.    Use transition words to enhance the flow of your document

To ensure that your arguments flow effectively, use transition words such as “Furthermore,” “Moreover,” “Additionally,” and “Also.” Doing so enhances the flow and organization of your argument.

8.    Repeatedly re-write and edit your brief, and do so on paper, not a computer

Studies have shown that writers who edit and proofread their work on paper identify more mistakes than those who edit and proofread on a computer.

9.    Don’t change tenses

Be sure to write your sentences in the same tense. Consider the following example:

The plaintiff walked out of the door and the defendant strikes the plaintiff, causing severe injuries.

Although there may be circumstances when changing tenses is appropriate, you should, as a general rule, maintain the same tense.

10.    Be simple and straightforward

When writing any document, you must consider the audience to whom it is directed. Indeed, the tone, complexity, and style of your writing may change depending on, for example, whether it is directed to a client or court. Regardless of your audience, however, you should always strive to draft legal arguments in a simple, straightforward, and easy-to-understand manner. After all, would you want to read a brief that is riddled with ‘SAT’ or esoteric words, and Latin? Of course not.

11.    Use Grammarly or another reputable editing service

Using a reputable editing service, such as Grammarly, can ensure that you identify most, if not all, of the spelling and grammatical errors in your document.

12.    Purchase books that serve as quick and effective reference tools

Be sure to consult references that will assist you in adhering to grammar and style rules. Books such as The Elements of Style by Strunk and White, or the Texas Manual of Style, are easily accessible and effective references to ensure that your writing is free of grammatical or stylistic mistakes.

13.    Read excellent writing

One of the best ways to become an excellent writer is to read excellent writing. The website below, for example, contains briefs written by the Solicitor General of the United States: https://www.justice.gov/osg/supreme-court-briefs.

 

[1] Edward A. Adams, Scalia: Legal Writing Doesn’t Exist (Aug. 9, 2008), available at: http://www.abajournal.com/news/article/scalia_legal_writing_doesnt_exist.

December 29, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Saturday, December 21, 2019

Advice for New Lawyers

Graduating from law school is a significant accomplishment and you should be proud and excited to begin your legal career. Whether you are employed in a private law firm, a government position, or a clerkship, be sure to conduct yourself in a manner that will maximize your chances of achieving success in the legal profession. Below are some tips to help with the transition from law school to law practice.

1.    Understand that ‘soft skills’ are extremely important to your success

Success as an attorney doesn’t depend solely or even primarily on your ability to analyze precedent, apply the law to the facts, or draft persuasive briefs. In the legal profession, attorneys who possess ‘soft skills’ are valued highly and often achieve greater degrees of success. Thus, understand that it’s not just your legal ability that matters. Rather, you must demonstrate to colleagues, judges, and clients that you possess the requisite soft skills to succeed in the profession. These skills include:

  • Interpersonal skills
  • Teamwork
  • Work ethic
  • Time-management
  • Creativity
  • Problem-solving
  • Listening skills
  • Having a positive attitude
  • Coping with stress effectively

Accordingly, focus on developing these and other soft skills because they are essential to becoming a competent and successful attorney.

2.    Don’t be a jerk – you want people to like you

In any organization, one of the most critical determinants of success is whether your colleagues and your clients like you. The following are some, but not all, of the characteristics that enhance your likeability:

  • Be humble. It doesn’t matter how highly ranked you were in law school or what law school you attended; being humble demonstrates an awareness that your colleagues are as smart or smarter than you (or at the very least, more experienced) and that you have a lot to learn as a new attorney. 
  • Be honest. If you make a mistake, own it and learn from it.
  • Be respectful. Treat everyone with respect and kindness. Don’t ever treat the staff poorly. The fact that you have a law degree doesn’t mean that you are superior to or better than those who do not. Indeed, how you treat others reveals much about your character and integrity.
  • Never gossip. Gossiping is disrespectful to others and it demonstrates that you cannot be trusted.
  • Be receptive to criticism and be willing to learn.
  • Be authentic. People don’t want to associate with individuals who are fake or shallow. Be real -- and be yourself.

Put bluntly, don’t be a jerk. In the end, it will negatively affect your career (and probably your personal life).

3.    Work very hard and persevere

In law practice (and in life), those who achieve high levels of success aren’t always or even often the smartest or the most talented. Rather, they work hard. They persevere. They sacrifice. They have the same work ethic and dedication regardless of whether they enjoy a particular assignment. Hard work and perseverance separates you from others and demonstrate your value as an attorney.

4.    Be confident and remember that you control how others perceive you

At the beginning of your legal career, you may feel nervous, insecure, and intimidated. These feelings are normal. It doesn’t mean, however, that you have to convey anxiety and insecurity to your colleagues and clients. You control how others perceive you and, to a degree, you control the opinions that others form of you. As such, be sure to project confidence, conscientiousness, self-awareness, and self-assurance. Your employer wants to know that you are reliable and can be trusted with difficult assignments under high-pressure circumstances. Projecting confidence is essential to gaining that trust.

5.    Continue improving your research and writing skills throughout your career

Excellent research, writing, re-writing, and editing skills are essential to achieving success in the legal profession. As such, dedicate yourself to improving these skills throughout your career. And it doesn’t matter if you obtained an ‘A’ in your legal research and writing classes in law school; becoming an excellent writer is a lifelong process and you should continually strive to improve your research and writing skills.

6.    Communicate honestly and openly with your colleagues

Effectively communicating with your colleagues and clients is essential. For example, if you receive an assignment and you aren’t sure how to complete it, don’t be afraid to ask for help, such as from a mentor that your firm assigns to you or from one of your colleagues. It is far better to ask for help than to complete a project in a substandard manner. And asking for help demonstrates humility and a willingness to learn. Likewise, never promise more than you can deliver or take on too much work. If, for example, a partner asks you to draft a brief on a very tight deadline and you are already extremely busy, be honest with the partner. It doesn’t mean that you are lazy or unwilling to take on a significant workload. It means that you recognize your limitations, which will enable the partner to find someone else who can meet the deadline and complete the brief with the requisite quality.

7.    Accept criticism and failure – and learn from those failures

Even if you graduated first in your class from law school, received a perfect grade point average, and received numerous awards, you will inevitably fail in the legal profession, particularly in your first few years. For example, a partner may be dissatisfied with the quality of your writing on an assignment. Your research memorandum may inadvertently omit a recently-decided and very relevant case. And you may lose a motion because the judge simply disagrees with your position. The point is that you will face criticism and you will experience failure. What matters is how you react to criticism and failure. The most successful attorneys view failure as an opportunity to learn, to grow, and to become better advocates. Thus, don’t be afraid to fail and never waste a failure. Learn from failure. Remember that becoming an excellent lawyer is a process and you have to embrace that process to achieve your goals. So don’t be too hard on yourself. After all, if you cannot accept criticism and learn from failure, you will never grow as a lawyer (or, most likely, as a person).

8.    Set goals and objectives for each day

Lawyers are often very busy and handle many cases simultaneously. To avoid feeling overwhelmed and to avoid mistakes (e.g., missing a deadline to file a motion), be sure, at the beginning of every day, to make a list of the most important assignments or tasks that you must complete. Although other unexpected assignments may arise during the course of a day, make sure that you complete the assignments on your list. In short, you must be organized. Prioritize your tasks and give yourself sufficient time to produce a high-quality product.

9.    Be reliable (always show up on time and always meet deadlines)

As a new attorney, you must demonstrate that you are reliable and trustworthy. Gaining trust begins by always being on time for a meeting or a deposition. If, however, you will be late in a given situation, be sure to communicate with your colleagues and have an exceedingly persuasive reason for your lateness. And never miss a deadline, such as for the completion of a memorandum or brief. When you miss deadlines, it gives the impression that you did not dedicate sufficient effort to completing the assignment in a timely manner, did not prioritize effectively, were not organized, or simply didn’t care.

10.    Pay attention to detail

Excellent lawyers pay attention to every detail, no matter how seemingly minor or inconsequential. As a new lawyer, you demonstrate your reliability and trustworthiness by paying attention to detail. For example, make sure that your brief complies with state or local court rules governing font type and size, and word count. When drafting a memorandum, be sure to include precedent that is not favorable to your position and explain why it does not affect your conclusion. When you bill time for a particular case, make sure that you specify in detail the tasks that you completed. Paying attention to detail demonstrates that you are conscientious and thorough in your work.

11.    Find a healthy balance between your professional and personal life

At the end of the day, what matters most is that you are happy. A critical aspect of being happy as a lawyer is finding a healthy balance between your work life and your personal life. If you become consumed by your work, your personal relationships will suffer. You will miss out on important events in your family. You may become burned out and no longer enjoy practicing law. Your health may suffer. For these and other reasons, you should strive to achieve a healthy balance between your professional and personal life that enables you to have healthy relationships and pursue other interests.

12.    Take care of your health and well-being – and ask for help if you need it

The practice of law can be very stressful at times. You may, for example, have to draft multiple briefs on very tight deadlines while also conducting depositions, appearing in court, and meeting with clients. To best prepare yourself to handle the stress of law practice, you should focus on being as healthy as possible. Take time to exercise. Eat healthy foods. Practice meditation or yoga (or whatever works for you). Get sufficient sleep each night because a lack of sleep will likely impact the quality of your work. And remember that coping with the stress of law practice with alcohol or other substances will cause you great harm over time, both professionally and personally. If you are struggling with alcoholism or drug abuse or suffering from depression, anxiety, or other mental health issues, please ask for help. Most jurisdictions have organizations that assist attorneys on a confidential basis. Additionally, you can seek psychological or psychiatric help, which can help you to develop coping mechanisms or provide you with medication in appropriate circumstances. Whatever you do, prioritize your health and happiness because both are perquisites to achieving success as a lawyer.

13.    Remember that your reputation is everything

In the legal profession, and in most professions, your reputation is everything. You should always conduct yourself in an honest and ethical manner, and demonstrate that you have integrity and strong values. Don’t ever lie. Don’t avoid problems. Don’t try to conceal facts or law from the courts that are unfavorable to your case. Don’t promise your client more than you can deliver. Don’t gossip about your colleagues. Don’t take credit for work that you didn’t do. Remember that your credibility as a lawyer is essential to maximizing the chances of success for your clients (and it shows that you are a decent human being).

14.    Be cautious about dating your colleagues       

In law practice, you’ll spend a significant amount of time with your colleagues and make meaningful friendships. But be careful about dating or getting into a relationship with one of your colleagues. If your relationship is not successful, it could lead to an awkward environment at work and distract you from your work. Of course, this is not always the case, but as a new attorney, it is advisable to keep your professional life separate from your personal life.

15.    Network and get to know your colleagues

Get to know your colleagues and the members of the bar in which you are practicing. Attend your firm’s social events and those sponsored by your bar association. Getting to know people in your profession enables you to establish connections in the profession and demonstrates your interest in becoming a valued member of the bar. But in doing so, don’t be fake or superficial. Be yourself. Be real. Be friendly. Be humble. Be respectful.

16.    Remember that it’s about how happy you are, not how much money you make

Don’t focus solely on making money. The legal profession provides you with an extraordinary opportunity to positively affect the lives of other people and your community. The best way to contribute meaningfully to the lives of others is to pursue what you are most passionate about, not what will make you the most money. Accordingly, you should evaluate whether you are happy at your firm or whether you are satisfied practicing in a particular area of the law. At the end of the day, your happiness – and health – matters more than anything else. Thus, don’t force yourself to stay in a job that you dislike or give up on dreams that you’d still like to pursue. Although change (and the resulting uncertainty) is difficult, you’ll be much happier pursuing goals that you truly desire rather than resigning yourself to a job that doesn’t satisfy you.

17.    Focus on what you can control and don’t waste your time lamenting the past or worrying about the future

The best attorneys learn from their mistakes but do not lament about the past. They do not spend time worrying about the future. Instead, they live in the present and focus on what they can control. You should do the same because it empowers you to devote your attention to excelling at your current responsibilities. After all, if you cannot change the past or predict the future, why should you devote any attention to either? Doing so only compromises your ability to succeed in the present.

Ultimately, listen to your inner voice and do what makes you happy. Life is short, so live it the way you truly desire.

 

 

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

Sunday, December 15, 2019

Writing an Outstanding Appellate Brief

The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.

1.    Frame the issue to maximize the persuasiveness of your argument

One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:

“The case involves whether the Appellee is liable for negligence”

                                                            versus

“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”

The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.

2.    Simplify the issue and argument

Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.

3.    Have an outstanding introduction

An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:

  • Draft a powerful opening sentence that explains why you should prevail
  • Tell the court exactly what you want (i.e., the remedy you seek)
  • Briefly present the most persuasive facts and legal authority that support your position
  • Include a theme that connects all of your arguments

Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.

4.    Tell a story

Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.

5.    Don’t argue the facts (unless absolutely necessary)

Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.

6.    Know the standard of review

Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.

7.    Be honest and acknowledge unfavorable law and facts

Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.

8.    Only present strong legal arguments

Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.

9.    Write, re-write, and edit your brief

Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.

10.    Don’t overwhelm the court with needless legal authority

Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.

11.    Don’t use boilerplate conclusions

Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek

12.    Put yourself in the adversary’s and court’s shoes

When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.

13.    Read great appellate briefs

If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

December 15, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, December 14, 2019

This Holiday Season, All Our Appellate Courts Want Is Good, Civil Writing

In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing.  While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.

The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained:  “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.”  942 F.3d 783, 792 (7th Cir. 2019).  For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog.  https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.

The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility.  Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics.  See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012).  In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law.  658 F.3d at 797-800.  According to Judge Sykes, who also authored McCurry:  “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.”  Stanard, 658 F.3d at 798.   Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in StanardId. at 800-02.

For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise.  I also use the case to show how lack of civility to the court and others inhibits persuasion. 

Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive.  On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”  See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).

Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts.  2019 WL 6242111, *2-4.   In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings.  Id.  After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining:  “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”  Id. at *4.   

This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil.  Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”  Id. at *4.  When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id.  Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.”  Id.  According to the court:  “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”  The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender.  Id. at *5.  As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.”  Id.

The court ended its opinion:  “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.”  Id  According to Briganti,  good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.”  Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.”  Id.

Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal.  MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist:  Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019).  While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past.  Id.

Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions.  And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful.  Happy holidays!

December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Tuesday, December 10, 2019

The Genealogy of Law

In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities,[1]  the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award.[2] This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.[3]

But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?

It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.

Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award.[4] So let’s trace the genealogy of the abuse of discretion standard in these three districts.

Ohio’s Eighth District Court of Appeals

Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review.[5] The court in Cleveland State cited Citibank, N.A. v. White,[6] which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.

An earlier Eighth District case, Miller v. Management Recruiters International, Inc.,[7] had also applied the abuse of discretion.[8] Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co.[9] But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.[10]

Ohio’s Tenth District Court of Appeals

In Dodge v. Dodge,[11] Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support.[12] But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.[13]

The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc.[14] That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education,[15] which in turn cited MBNA American Bank, NA v. E. Paul Jones.[16] The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard.[17] While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard.[18] And Endicott did not say that abuse of discretion was the proper standard of review.[19]

Ohio’s Twelve District Court of Appeals

The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek.[20] Masek held that abuse of discretion was the correct standard of review[21] and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp.,[22] to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.[23]

The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc.[24] The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.

In Buchholz v. W. Chester Dental Group,[25] the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.[26]

These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.

[1] 103 N.E. 3d 804 (2018).

[2] Id. at 805.

[3] Id.

[4] Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).

[5] Cleveland State Univ., 50 N.E. 3d  at 289.

[6] 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).

[7] 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).

[8] Id. at 1166.

[9] 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).

[10] Id. at 849.

[11] 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).

[12] Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).

[13] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).

[14] 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).

[15] 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).

[16] Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).

[17] 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).

[18] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).

[19] Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).

[20] 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).

[21] Id.

[22] L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).

[23] Id.

[24] 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).

[25] CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).

[26] In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).

 

 

December 10, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, December 7, 2019

Implicit Bias: Does It Have Any Relationship to Biased Behavior?

In recent years, social scientists have demonstrated that all individuals likely harbor implicit, or unconscious, biases. Additionally, based on empirical research, some scholars contend that laws or policies that disparately impact marginalized groups result, at least in part, from implicit biases. Other studies suggest that certain behaviors, such as statements reflecting subtle prejudice against marginalized groups (e.g., microaggressions) result from implicit biases. As a result, many organizations in the public and private sector have instituted training programs that focus on implicit bias, its allegedly deleterious effects, and the methods by which to alleviate such bias in, for example, the hiring and promotion of employees or admission of applicants to universities throughout the United States. And researchers at Harvard University have developed the Implicit Association Test (IAT), which purportedly measures the degree to which an individual harbors implicit biases in a variety of contexts, including those affecting traditionally marginalized groups.

Certainly, striving to eradicate biases that produce discriminatory or disparate impacts on individuals or groups is a moral and legal imperative; discrimination in any form is intolerable and contravenes the guarantee that citizens of all backgrounds enjoy liberty, equality, and due process of law.

But does implicit bias actually – and directly – correlate with biased behavior?

Recent research in the social sciences suggests that the answer to this question remains elusive and that the effect of implicit bias on biased behavior may not be as significant as previously believed.

To begin with, there is a general consensus among scholars that implicit bias exists. Put simply, all individuals, regardless of background, arguably harbor implicit biases or prejudices. Importantly, however, the distinction between implicit and explicit bias is difficult to ascertain and operationalize. In other words, how can researchers claim with any degree of confidence that discriminatory behaviors or policies that, for example, disparately impact marginalized groups are the product of implicit rather than explicit bias? Currently, there exists no reliable and objective criteria to make this distinction.

Furthermore, if, as some researchers contend, implicit bias resides outside of consciousness, it would seem difficult, if not impossible, to remedy the effects of such bias. After all, if we cannot be aware of these biases, how can we regulate their manifestation in particular contexts? Also, how can researchers reliably claim that implicit bias predicts biased behavior if not a single person, including researchers, can be aware of its presence and influence? This is not to say, of course, that individuals are unable to develop an increased awareness of the explicit biases that they harbor and take steps to minimize the effect of such biases on their behaviors. It is to say, though, that the relationship between implicit bias and biased behavior remains uncertain, and that there is no method by which to quantify the effect of implicit bias on biased behavior given the presence of other relevant factors (e.g., explicit bias).

Moreover, recent research suggests that the correlation between implicit bias and biased behavior is dubious:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior.[1]

These findings, the researchers state, “produce a challenge for this area of research.”[2]

Additionally, the IAT, which is a popular assessment of implicit bias, has faced significant criticism concerning its methodology and practical value. For example, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs.[3] Also, scores on the IAT are arguably context-dependent and thus produce different results for individuals who take the test multiple times.[4] Consequently, although results on the IAT are “not as malleable as mood,” they are “not as reliable as a personality trait.”[5] Likewise, it is difficult to assess whether the IAT is measuring unconscious attitudes of mere associations that result from environmental influences.[6]

In fact, researchers have conceded that the IAT is flawed, stating that, although the IAT “can predict things in the aggregate … it cannot predict behavior at the level of an individual.”[7] In fact, one of the IAT’s creators acknowledged that the IAT is only effective “for predicting individual behavior in the aggregate, and the correlations are small.”[8] Perhaps most surprisingly, one researcher explained that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.”[9] As a social psychologist explains:

Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.[10]

Of course, this does not mean that implicit bias bears no relationship to biased behavior. It simply means that more research is necessary to determine whether, and to what extent, implicit bias predicts biased behavior. After all, given that eradicating all forms of discrimination is a moral imperative, researchers and policymakers should ensure that society is using the most effective measures to do so. This includes assessing whether implicit bias is a credible predictor of biased behavior.

[1] Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807 (emphasis added).

[2] Id.

[3] Azar, B. (2008). IAT: Fad or Fabulous? American Psychological Association. Retrieved from: https://www.apa.org/monitor/2008/07-08/psychometric.

[4] Id.

[5] Id.

[6] Id.

[7] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. (March 7, 2017), available at: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test-racism; see also Heather MacDonald, The False Science of Implicit Bias, (Oct. 9, 2017), available at: https://www.wsj.com/articles/the-false-science-of-implicit-bias-1507590908.

[8] Id.

[9] Id. (emphasis added).

[10] Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea (Dec. 2, 2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.

December 7, 2019 in Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Friday, December 6, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 6, 2019

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

US Supreme Court Opinions and News:

  • A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week.  See more from CNN and Reuters.
  • After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
  • This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot.  See NYT OpEd here.
  • The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.

Federal Appellate Court Opinions and News:

  • A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association.  See NYTimes article here.
  • The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida.  See AJC article here

State Appeals Court News

  • The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign.  The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word.  See ABA Journal story here.

 

December 6, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, November 30, 2019

Advice for Drafting Amicus Briefs in Cases Pending Before the United States Supreme Court

The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?

1.    Good amicus briefs make original arguments.

Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?

You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:

Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.[1]

This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?

Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.

2.    Attract the Court’s attention at the beginning of the amicus brief.

Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.

Indeed, interviews with former Supreme Court clerks confirm this fact:

To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.[2]

Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.

3.     Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).

Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.

4.    Use social science data to support your arguments.

Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:

Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.[3]

For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.

5.     Focus on specialized areas of the law.

Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[4]

Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.

6.    Remember that your goal is to assist the Court in reaching a fair decision.

Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.

7.    Ensure that your writing is of the highest quality.

An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.

Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.

Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.

[1] Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).

[2] Id.

[3] Id.

[4] Id.

November 30, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 27, 2019

Valuing Precedent

Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts.[1]  When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances.  As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.”[2]  In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable.  Acting in this manner seems fair to everyone and keeps people we deal with content.  When we act differently, we call it a surprise, which can be a good thing or a bad thing.

 Courts use prior decisions or precedents in much the same way, as models for later decisions.  Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction.[3]  Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not.  Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors.[4]  Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges. 

Courts around the world consider precedent in varying degrees.  We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.

Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues.  Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable.[5]  In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given.  One decision alone is said to make law that must be followed in subsequent cases.[6]

On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law.  A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight.  These decisions do not bind the court to a particular interpretation of the law, nor do they make law.  In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.[7]

The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.

Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct.  For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis.[8]  The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions.[9]  Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts.  Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake.[10]  The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:

Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process.  Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.  Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.  Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.[11]

American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied.  United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant.[12]  He explained, “[S]tare decisis is not an end in itself.  It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”[13]

Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law.  In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision.[14]  Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law.[15]  The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions.  These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past.  Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.[16] 

 

[1] The author has published articles on the value of precedent and a book chapter that addresses the topic.  This post draws directly from those publications.  See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

     [2]. Interpreting Precedents: A Comparative Study 1 (D. Neil MacCormick & Robert S. Summers eds., 1997).

     [3]. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).

     [4]. Deborah G. Hankinson, Stable, Predictable, and Faithful to Precedent: The Value of Precedent in Uncertain Times

http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).

     [5]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts).  See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).

     [6]. Rubin, supra note 5, at 1371.

     [7]. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”).  But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).

 

     [8]. Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 71, 74, 86-88 (2006).

     [9]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998).  The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53.  See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”). 

   [10]. Citizens United v. Fed. Election Comm’n, 130 S. Ct 876, 911-12 (2010).

   [11]. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).

   [12]. Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring).

   [13]. Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

   [14]. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).

[15] La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).

[16] I have referred to this behavior as “systemic respect for jurisprudence.”  Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.

November 27, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, United States Supreme Court | Permalink | Comments (1)

Friday, November 22, 2019

The Weekly Roundup

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • After years in court, including one previously denied Supreme Court petition in 2015, Google v. Oracle will be heard by the Supreme Court. The dispute centers on the use of application programming interfaces (also called software interfaces or APIs), specifically whether the Copyright Act protects Oracle’s API that Google admits to using. For a much more astute summary and explanation, see the New York Times and National Law Journal.
  • This week’s New Yorker included an article on Justice Elena Kagan. See it here.

Federal Appellate Court Opinions and News:

  • The Fourth Circuit held that suspicionless searches of travelers’ digital devices violates the US Constitution. The ruling holds that US border agents need reasonable suspicion, though not a warrant, to search smartphones and laptops at US ports of entry.  See coverage in Reuters; CNN; or USNews.
  • A Federal Court has stayed four federal executions set to occur next month, effectively blocking the recent Justice Department decision to resume federal executions. The order issued a preliminary injunction based on concerns about the government’s lethal injection method. See NBC News, NPR; and CNN.
  • The ACLU on behalf of five journalists is suing the government claiming the government violated the journalists' First Amendment rights.  The suit challenges the government’s questioning of the journalists at the US-Mexico Border. See the complaint in Guan v. Wolf here. The ACLU announcement is here.

Appellate Practice Tips and Techniques:

  • Here’s a useful Twitter thread on best advice for legal writers.  It includes a post from Michelle Olsen about Justice Kennedy: “Justice Kennedy would tell his law clerks: ‘You can't write anything good because you've never read anything good.’”  The post includes a link to a Harvard Law Review tribute to Justice Kennedy.

 

November 22, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Sunday, November 17, 2019

Do Federal Courts Make Decisions Based on Ideological Considerations?

It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.

But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?

Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.

First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.

Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.

Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.

Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.

Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.

Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.

November 17, 2019 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Thursday, November 14, 2019

"Digital Public Commentary": A New Rhetoric for Lawyers?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.

In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.” 

Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions.  First, is a lawyer's digital public commentary a unique genre of legal writing?  And, if it is, what are the rhetorical possibilities for and problems of this form?

I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing.  First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing.  Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients.  Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language). 

Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role.  The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.

So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do.  And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.  

The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of  "digital rhetoric," rhetoric that is electronic or computerized.  While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features.  Two of those features are circulation and fragmentation. 

Circulation refers to the way a message moves from audience to audience across space and time.  The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.)  Message circulation increased and accelerated with television and radio.  But, even then, gatekeepers controlled the amount, speed, and movement of information via those media.  With the internet, however, both the speed and range of message circulation has increased again.  That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.

Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages.  That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation.  In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example.  This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.

So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?  

First, we might ask questions about the resources available to lawyers in the digital space.  What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces?   Are/should any of those methods be ethically off limits to lawyers?  Conversely,  how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law?  For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?  

Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation.  What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer?  Is misuse and misinterpretation of message fragments inevitable?   If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer?  How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?

Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric.  If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?  

These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more.  Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

 

November 14, 2019 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)

Friday, November 8, 2019

The Weekly Roundup

 

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
  • The court has released the January calendar, which begins on January 13, 2020.
  • A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).

Federal Appellate Court Opinions and News:

  • The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
  • An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.

Final Tidbit

The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial.  Law360 article here.

November 8, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 6, 2019

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

November 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (1)

Saturday, November 2, 2019

AI and Free Legal Research, Annotated

   Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research.  Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools.  Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar.  As new lawyers, especially if they start in small or solo practices, they will need access to free tools. 

   Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more.   Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance.  See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).

   There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery.  See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH:  Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com.  For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019). 

   In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org.  According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.”  Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe.  The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online. 

   Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel.  See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/.  A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned. 

   For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as:  “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.”  Next-Gen. Lgl. Res. Platforms, ACB.  In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:

(1)  “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.”  Judicata has free and subscription-based services.

(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”

(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”

   I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms.  I hope these sources are helpful to you as well.  Happy research, everyone!

November 2, 2019 in Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)