Sunday, October 10, 2021
I received word this week that Becket is hiring. For those who are not familiar with Becket, it is a leading religious liberty public interest law firm with a superb record before the U.S. Supreme Court. It would be an excellent place to get some appellate experience. The details on the positions are below:
First, Becket is seeking to hire 1-2 new attorneys as Counsel. Ideal candidates will have an appellate clerkship, 1-5 years of post-law-school experience, and excellent litigation skills. You can find more details on the position here: https://www.becketlaw.org/counsel-position/.
Second, Becket is seeking 2-3 new attorneys for its 2022-23 Constitutional Law Fellowship. The fellowship is a one-year position that is open to exceptional recent judicial clerks. It provides immediate, hands-on experience litigating cutting-edge constitutional cases under the mentorship of experienced Becket attorneys. It is also an excellent stepping stone to an additional judicial clerkship, government service, private practice, or public interest law. Fellowships start in fall 2022 and offer a competitive salary and benefits. You can find more details here: https://www.becketlaw.org/constitutional-law-fellow-posting/.
Saturday, October 2, 2021
A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court
The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court. Three factors arguably explain the reasons underlying the public’s negative perception of the Court.
1. Chief Justice John Roberts
Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.
Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.
The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.
Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.
2. The Shadow Docket
The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.
Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences. Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).
So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.
3. The Justices’ Political Views
If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.
Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.
And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.
This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.
Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras, seeking to discover new rights that reflect the “heady days of the here and now.” That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.
Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.
Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.
Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash.
Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.
 See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Thursday, September 9, 2021
Thursday's Rhaw Bar: The Objectives and Means of Brief Writing: Who Makes the Rhetorical Choices? Does it Matter?
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.
This semester, I’m teaching Professional Responsibility to about 145 second-year law students. We are on the topic of how the ethics rules allocate decision-making between lawyers and clients. The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules. Model Rule 1.2 (a) and Comment 5 provide that
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.
Objectives, Means & The Appellate Brief
Applying this rule to appellate lawyers writing briefs seems straightforward. When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor. An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle. But generally, the client’s objective is to win on appeal.) Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs. In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective. If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.
So, we might conclude that content of the brief is almost always the means and not the objective of representation. In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art. (I wrote about this concept of rhetoric as productive art last month.) If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide. Maybe consultation is required under the ethical rule, but nothing more. (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)
But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief? Maybe, maybe not. Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal. Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.
Raising Issues on Appeal: The Supreme Court’s View in Jones v. Barnes
In 1976, a New York state jury convicted David Barnes of robbery and assault. Michael Melinger was assigned to represent Barnes on appeal. From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal. Barnes also enclosed his own pro se brief.
Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.
In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s. But Melinger also filed with the appeals court Barnes’s pro se brief. Melinger lost the appeal.
In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.
This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”
The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion. Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow out weaker arguments on appeal and focus on . . . at most a few key issues.” A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal, and the lawyer should be the one to choose which of the “few major points” should be raised. The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”
In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.”
In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.” But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”
Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment. At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly, the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice. Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.
Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff. Brennan said: “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.] If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.
Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs
So, what then, do we have here?
Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives. The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible. Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.
The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants: constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so. (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result. The ethics, then, are perhaps not so clear.) For civil appellate lawyers, on the other hand, the implications of Jones are indirect but interesting. The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.
Is brief writing a mean or an objective?
On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief. It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives. Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade.
But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means. One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation. In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important. Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen. Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.
Are legal issues created or identified?
Another question Jones raises is the nature of “issue identification” as a rhetorical (i.e., persuasive) act. That is, do lawyers create issues for argument or do they find them? In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger. But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.
But, on the other hand, even issue identification is a rhetorical act. Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs. Artistic proofs, Aristotle said, are created by the rhetor. An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data. So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)
Which rhetorical choices are means? Which ones are objectives?
Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which? For example, an appellate brief should have a theme. If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean? How about metaphors? How about references to history or popular culture that help make a point? All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client? Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?
Does the appellate lawyer’s professional expertise in legal rhetoric matter?
And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important? Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer. Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing. If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases? If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter? And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.
Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law. Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised. And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair. This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.
That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices. In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.
What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? 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. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Tuesday, September 7, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.
Do provide appropriate signposts:
- Do consider using headings and summaries.
- Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.
The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next
1. Point headings make our writing better.
Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.
A. Point headings are topic sentences.
Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.
B. Point headings should be full sentences.
Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better
1. Strict Scrutiny.
2. The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.
The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.
C. Point heading should look like sentences.
Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.
D. Point headings are not just for the argument section.
Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:
1. In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.
The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.
E. Point headings serve as a check on your analysis.
If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.
F. Good point headings start with a good outline.
The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.
G. You should include point headings in your Table of Contents.
Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:
Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.
2. Summaries make our writing better.
Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.
After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.
3. Transitions make your writing easier to follow.
A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.
Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.
September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)
Sunday, September 5, 2021
In the words of the late Justice Antonin Scalia, “[l[ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey) stalks the Fourteenth Amendment’s jurisprudence yet again, reflecting the constitutional mess that these decisions created.
Specifically, in Dobbs v. Jackson Women’s Health Organization, the Court will decide whether a Mississippi law, which bans abortions after the fifteenth week of pregnancy, violates the right, created in Roe and reaffirmed in Planned Parenthood, to obtain abortions before viability (which occurs at approximately twenty-four weeks of pregnancy). By way of background, in Roe, the Court interpreted the Fourteenth Amendment’s Due Process Clause to support a fundamental right to terminate a pregnancy in certain circumstances. In so holding, the Court adopted a trimester framework that balanced a woman’s right to terminate a pregnancy with a state’s right to regulate the abortion procedure. In the first trimester, women had an unfettered right to terminate a pregnancy. In the second trimester, states could regulate abortion to protect a women’s health. After the second trimester – when the fetus became viable – states could prohibit abortions except when necessary to protect the life or health of the mother.
Scholars and judges of all political persuasions criticized the Court’s decision in Roe, arguing that the right to abortion could not be found anywhere in the Constitution’s text and certainly was not inferable from the Fourteenth Amendment’s Due Process Clause, which protects procedural, not substantive rights. These scholars were correct: the abortion right in Roe was predicated in substantial part on and an outgrowth of the Court’s decision in Griswold v. Connecticut, where the Court held that the Constitution contains invisible “penumbras,” that are “formed by emanations from those guarantees [in the text] that give them life and substance.” In other words, the Court could create whatever rights it wanted, regardless of whether the text supported creating those rights.
Two decades later, in Planned Parenthood, the Court made the problem worse. In a 5-4 decision, the Court upheld the central holding in Roe (the right to obtain abortions before viability) but rejected Roe’s trimester framework. In its place, the Court adopted the “undue burden,” test, which stated that before viability, states may not enact laws that impose a substantial burden on a woman’s right to access abortion services. It is obvious why Planned Parenthood introduced instability and unpredictability into abortion jurisprudence. After all, what constitutes an “undue burden” on the right to obtain a pre-viability abortion? No one knew the answer. Perhaps it was located in Griswold’s penumbras, which only the Court could access and define.
Not surprisingly, in response to what many rightfully perceived as judicial overreach in Roe and constitutional ambiguity in Planned Parenthood, some states embarked on a decades-long and seemingly never-ending mission to eviscerate, if not effectively overturn, Roe through legislation that imposes various restrictions upon when and under what circumstances women can obtain abortions. For example, in Planned Parenthood, a Pennsylvania law required minors to obtain parental consent, and adult women to inform their spouses, before obtaining an abortion. The Court upheld the former provision and invalidated the latter. In Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, Texas and Louisiana, respectively, enacted laws requiring physicians to obtain hospital admitting privileges before providing abortion services. In two 5-4 decisions, the Court invalidated both laws. These cases are just a sample of the many instances in which states attempted to limit, directly or indirectly, access to abortion.
And in every case, the Court declined the opportunity to clarify definitively the nature and scope of the abortion right, such as by unequivocally upholding or overruling Roe, or adopting categorical rules concerning when and under what circumstances women could access abortions. Instead, the Court applied the malleable “undue burden” test, which resulted in a case-by-case jurisprudence that led to uncertainty and often kept the abortion right hanging by a thread, dependent more on the current justices’ ideological predilections than on principled constitutional law. Simply put, the Court’s approach ensured that the abortion right would remain in constitutional purgatory, mired in uncertainty, and continuously under attack by states that viewed abortion as constitutionally unsupportable and morally indefensible.
Unfortunately, the saga continues.
In the latest installment of How to Overturn Roe While Acting Like You Are Not, the State of Mississippi has enacted a law that bans abortions after fifteen weeks – and thus bans a portion of previability abortions. Only this time, the plot doesn’t just involve Dobbs v. Jackson Women’s Health Organization, where the Court will decide whether Mississippi's law passes constitutional muster. Rather, Texas has decided to make yet another appearance into the abortion sage by passing an unusually bizarre law that: (1) bans all abortions after six weeks; and (2) gives citizens, not the state, enforcement power by authorizing private causes of action against those who provide or assist in providing abortion services after six weeks. This law is certainly unconstitutional; many women do not even know that they are pregnant at six weeks, thus rendering the six-week limit a substantial and unconstitutional burden on abortion access. Not surprisingly, in Whole Women’s Health v. Jackson, the Petitioner sought an order from the Court preliminarily enjoining the law's enforcement.
You’d think that, based on Roe and Planned Parenthood, the Court would have granted the injunction.
Last week, in a 5-4 decision, the Court declined to issue an injunction.  To be fair, the majority did not rule on the merits of Texas’s law. Rather, the Court held that the Petitioner did not meet the standard for obtaining a preliminary injunction because, among other things, there was no evidence that any private citizen intended to enforce the law, or that the Court had the authority to issue an injunction against state judges who were asked to decide the law's constitutionality. The Court was careful to emphasize, however, that its decision was not “based on any conclusion about the constitutionality of Texas’s law.”
The majority doesn’t live in a fantasy world. It knew that its decision would allow a law to go into effect that unquestionably violated Roe and Planned Parenthood, and effectively outlawed abortion for most women in Texas. As Justice Sotomayor explained in her dissent:
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.
Furthermore, as Justice Breyer noted in his dissent, the Court could have enjoined the law on the ground that a state “cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Ultimately, the Court’s refusal to issue the injunction in Whole Women’s Health v. Jackson suggests that five justices may be prepared to overturn Roe or, at the very least, severely restrict abortion rights.
For that and other reasons, Dobbs v. Jackson Women's Health Organization is perhaps the most important abortion case in years. Whatever the justices decide, they should ensure that the opinion ends the constitutional mess that is abortion jurisprudence, in which the abortion right has been plagued by uncertainty and the Court’s decisions characterized by anything by clarity. The Court can do so by issuing a clear and categorical decision about whether abortion is a fundamental right and, if the answer is yes, clarifies definitively the scope of this right. The Court has several options, including:
- Overturn Roe and return the abortion issue to the states.
- Overturn Planned Parenthood but not Roe and return to the trimester framework.
- Overturn Planned Parenthood and Roe, but hold that the Equal Protection Clause supports the right to abortion.
- Uphold Planned Parenthood and Roe based on stare decisis.
The absolute worst result would be if the Court issued yet another fractured, 5-4 decision that invalidated or upheld the Mississippi law, but otherwise provided no clarity regarding the scope of the abortion right and the states’ power to restrict its exercise. The worst result would be if Chief Justice Roberts engaged in legal shenanigans yet again in a misguided to preserve the Court’s institutional legitimacy. The worst result would be if the Court issued a plurality opinion with multiple concurrences and dissents that made readers think that the Court just can’t – and perhaps never will – reach any agreement on how to address the constitutional mess that Roe created, and that Planned Parenthood exacerbated. Whatever happens, the abortion saga should be a lesson in what happens when courts ignore the Constitution and create rights out of thin air.
The time has come to bring the abortion soap opera to a conclusion and end the decades-old constitutional charade that Griswold, Roe, and Planned Parenthood created. In other words, either kill the monster or allow it to forever terrorize constitutional law and lurk in the hidden penumbras, waiting to trap and possess unsuspecting justices in those penumbras.
The Court’s abortion jurisprudence, however, suggests that the ending in the latest installment of How to Overturn Roe While Acting Like You Are Not will leave the audience wanting, just as in those 80s’ horror movies that ended with the killer seemingly dead, only to open an eye or move a body part before the screen fades out, signaling to the audience that yet another sequel is on the horizon.
 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J., concurring)
 No. 19-392, available at: Dobbs v. Jackson Women's Health Organization - SCOTUSblog.
 410 U.S. 113 (1973).
 See id.
 See id.
 See id.
 See, e.g., Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu).
 381 U.S. 479 (1965) (brackets added).
 505 U.S. 833 (1992).
 See id.
 579 U.S. 582 (2016); 591 U.S. , 2020 WL 3492640.
 See id.
 See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
 See Whole Women’s Health v. Jackson, 594 U.S. (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Sotomayor, J., dissenting).
 Id. (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976)) (brackets in original).
Saturday, August 21, 2021
In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.
If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.
That has to change – now.
For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.
1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in content-based discrimination.
A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees. The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures. The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad a state actor for this purpose. Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.
Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint. As one commentator explains:
Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.
As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”
Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.” And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.
2. Social media is the new public forum and the modern-day marketplace of ideas.
Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.
Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.
By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.
3. A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.
Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule. By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.
It encourages groupthink.
It discourages critical analysis of public policy issues.
Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor. Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:
Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.
Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors.
The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.
Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.
 489 U.S. 602 (1990)
 See id.
 See id.
 See id.
 Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).
 David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at: In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).
Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.
Saturday, August 7, 2021
In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”
Well, guess what?
Sometimes, neither the law nor the facts support your argument.
In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.
So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:
You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.
After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.
As the attorney representing the congressman, you obviously have an uphill battle.
Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.
The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.
So, what can you do to make this ‘bad’ argument as persuasive as possible?
1. Create a nuanced argument that renders governing precedent less controlling
When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.
Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.
Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?
Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.
This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.
Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.
2. Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument
When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.
Below are a few examples relating to the above hypothetical:
So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?
So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?
So, the court’s interpretation of ‘reckless’ means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?
These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.
3. Forget the straw man – attack and undermine your opponent’s best argument
Never, never, never avoid the elephant in the room. And never make a straw man argument.
Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.
4. Use quantitative and qualitative data to maximize the persuasive value of your argument
Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:
In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.
Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.
5. If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say
When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.
Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:
So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?
Uh oh. I wouldn’t want to be that attorney.
So, what should you do?
Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:
I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.
Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.
6. Argue with emotion and confidence
Perception matters. Confidence and passion matter. Especially when you are the underdog.
When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious. When you exhibit confidence and passion (and make a well-structured argument), you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.
7. Appeal to the court’s sense of fairness and justice
Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.
Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.
Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.
Thursday, August 5, 2021
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
The Rhaw Bar Is Back
The Rhaw Bar is back from its long hiatus. Thanks to the Appellate Advocacy Blog for allowing me to return. Once a month, we’ll savor a little bite of rhetoric and law. I hope you’ll share your thoughts, too, in the comments, and let me know what law and rhetoric topics you’d like me to write about in future posts.
This Month’s Topic: What is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?
Rhetoric and rhetorical skills are a topic of interest for lawyers. But, what are we really talking about when we talk about rhetoric?
Look at these titles for the different ways rhetoric is used:
- A Bar Magazine: 5 Persuasive Rhetorical Techniques
- A Law Review Article: Significant Steps or Empty Rhetoric? Current Efforts by the United States to Combat Sexual Trafficking near Military Bases
- A Book Chapter: A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
- An Article by a Rhetoric Scholar: Critical Legal Rhetorics: The Theory and Practice of Law in the Post- Modern World
What’s going on here? Does “rhetoric” mean the same thing in every title? Not really. Instead, the titles provide four ways for understanding rhetoric in relation to the law and legal practice.
Rhetoric Is a Set of Strategies for Producing Arguments. The first title, 5 Persuasive Rhetorical Techniques points us toward a definition of rhetoric as productive art, as a means of producing persuasive arguments. In other words, rhetoric is the way in which we use language (or symbols) to persuade others to adopt a perspective (e.g., the First Amendment does not apply in this case) or to take a desired action (e.g., affirm the trial court). When we think of rhetoric in this sense, the focus is on how we will persuade audiences through our messages. How to use rhetorical techniques like deductive and inductive reasoning, stylistic devices, analogy, and metaphor fall into this category. How to invent arguments falls into this category, too. Rhetorical scholar Gerald Hauser’s definition puts an even finer point on this we he describes rhetoric as a way of doing something with words: “Rhetoric,” he says, “is an instrumental use of language. One person engages another person in exchange of symbols that accomplish some goal.”
Rhetoric Is a Deceitful Way of Communicating. The law review article Empty Rhetoric draws attention to rhetoric as words that are false, deceptive, misleading, or disingenuous. Enlightenment philosopher John Locke, for example, called rhetoric “that powerful instrument of error and deceit.” Two millennia prior to Locke, Plato was equally skeptical of “false” rhetoric, calling it “cookery” or “flattery.” The law review title is an apt example of the “rhetoric as false” definition: The Navy says it’s eliminating sex trafficking, but is it? Do its words mean anything at all? Are the words disconnected from reality?
This interpretation of rhetoric is common—we hear about the false rhetoric of one politician or another all the time. Central to this meaning is that rhetoric has no (or very little) role in producing truth; instead, rhetoric leads us away from the truth. That is, those who use rhetoric must be misleading the audience, seeking to convince others in a way that is inconsistent with reality. (Below, you’ll see I reject this idea.)
“Legal Rhetoric” Is a Particular Kind of Rhetoric. The title, A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, directs us to the idea that law is not only produced by rhetoric, but is a rhetoric itself. In other words, law is a discipline that uses language in a particular way to accomplish particular ends; it has its own discourse commitments.
Legal scholar James Boyd White famously said this about the law: “[Law is a] branch of rhetoric . . .by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject.” (Read White’s article here.) In other words, if law is continuous with rhetoric, then law is a rhetoric: a way of describing, categorizing, understanding and knowing the world through discipline-specific rhetorical commitments. Other rhetorics exist, too. For example, the rhetoric of science is a well-studied subject in which scholars look for the rhetorical commitments of scientific discourse.
Legal Scholar Gerald Wetlaufer, in his article, Rhetoric and Its Denial in Legal Discourse, argues that law as a rhetoric includes
commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts. Finally, the rhetoric of our discipline reveals our commitment to a particular conception of the rule of law.
Wetlaufer suggests that understanding the rhetoric of law as a rhetoric can help us understand the advantages and shortcomings of that rhetoric. In other words, by recognizing that the law “speaks” in a particular way, we can carefully look at the implications of that way to our understandings of justice, power, lawyers’ reputation, argument, and the rule of law. To get a better sense of law as a set of rhetorical commitments, I recommend Wetlaufer’s article as well as A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, by Jack Balkin, which suggests that law can be understood as a rhetorical “topics.” (You can decide if you agree with either of them.)
Rhetoric Is a Theory and Method for Analysis and Critique. The last title, Critical Legal Rhetorics: The Theory and Practice of Law in the Post- Modern World, draws attention to rhetoric as a theory and method for analyzing and critiquing legal discourse. Thinking about rhetoric in this way means thinking like a contemporary rhetoric scholar—using rhetoric to study, explain, theorize, and criticize symbol use. In this context, for example, judicial opinions, statutes, and other legal documents become artifacts for study-- critics apply rhetorical theory and use rhetorical methods to gain insight into the ways in which the discourse works.
Beyond its title alone, Critical Legal Rhetorics is an example of this way of thinking about rhetoric. Rhetoric scholar Marouf Hasian argues that not only do we need more rhetorical critique of Supreme Court opinions for their political and contradictory features, but also that rhetorical critics need to examine the discourse of less powerful others whose rhetoric is not recorded in the judicial record. He calls this a “critical legal rhetoric” approach. Hasian says that by situating official legal discourses in the larger public sphere of argument, we can better understand how rhetorical choices impact fundamental rights. Hasian’s article is just one example of how rhetorical theory and method can be developed to analyze legal texts. (If you want to better understand the basics of rhetorical criticism, here’s a great book for novices.)
So why should appellate advocates care about these four meanings of rhetoric?
The work of appellate advocacy is centered on reading and writing legal arguments, and rhetoric is, perhaps above all else, a particular kind of sensibility in reading and writing. Developing a rhetorical sensibility can enable appellate lawyers to have a more nuanced approach to reading and writing.
First, and probably most obviously, appellate lawyers can write more effective legal arguments if they understand rhetoric as the strategies and tactics of persuasion. That is, by learning rhetoric, we can learn more about how to write arguments.
And second, but perhaps not as obviously, if appellate lawyers understand law as a rhetoric that can be critiqued with rhetorical theory and methods, then they can be more sophisticated readers of the law, improving their abilities to “see” and critique legal argument. In addition, appellate lawyers might also be more attuned to the law’s relationship to justice. Remember what White said? Law is a rhetoric with “justice as its ultimate subject.” I think, as an ethical matter, appellate lawyers should better understand that connection between law, rhetoric, and justice, and reading law as a rhetoric can help develop that understanding. (If you want to read more, I’ve written here about the connection between the lawyer’s skill of rhetorical criticism and the lawyer’s special responsibility for justice.)
Finally, what about the meaning of rhetoric as empty or false? I suggest that as lawyers, we reject the idea of “empty rhetoric” and instead consider as more accurate the idea that lawyers produce rhetorical knowledge. Rhetorical knowledge is not false; it is a way of knowing the world through the enterprise of argument. As legal scholar Jay Mootz suggests, rhetorical knowledge is generated through legal practice and is relevant to the historical contingencies, controversies, and communities of the human condition. Mootz convincingly argues that for centuries, we have neglected “the unavoidable role of rhetorical persuasion in legal meaning . . . . [W]e should return to a conception of legal meaning as rhetorical knowledge.” I think he’s right.
What have I missed in my definitions of rhetoric as they relate to the law? What do you think about appellate lawyers being rhetorical critics? 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. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Tuesday, July 27, 2021
Professionalism in Legal Writing – Dos & Don’ts, Part IV
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.
Do adopt a clear and persuasive style:
- Do put material facts in context.
The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.
Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:
The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).
The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.
- Do write in a professional and dignified manner.
Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.
I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.
- Do put citations at the end of a sentence.
We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.
- Do use pinpoint citations when they would be helpful.
They’re always helpful.
 Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/
Saturday, July 24, 2021
The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.
1. Make your sentences concise
Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:
The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.
This sentence is far too wordy. Instead of the above statement, simply say:
The Second Amendment protects an individual right to bear arms.
Likewise, consider this example:
The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.
Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:
The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.
That sentence is thirteen words, and it says the same thing.
Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.
2. Focus on coherence and flow
Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages. With this in mind, consider the following statement:
The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.
This paragraph is utter nonsense. It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.
3. Keep the reader’s attention
When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:
The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.
This paragraph is worse than the Friday the 13th movies. Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.
4. Eliminate filler words
Sentences should include only necessary and purposeful words. As such, eliminate words like “just,” “very,” and “really.” Consider the following example:
My settlement offer should really be considered by your client.
Your client should consider my settlement offer.
The second example eliminates the filler words. It gets to the point quickly and directly.
5. Don’t repeat words
If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:
The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.
Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.
6. Don’t suggest unintended meanings or biases
Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases. Consider the following example:
The defendant was mentally retarded and should be held incompetent to stand trial.
Yeah, that’s not good. Instead, say:
The defendant was intellectually disabled and should be held incompetent to stand trial.
Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.
7. Avoid words that convey uncertainty or equivocation
Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:
The court’s decision seems to be based on reasoning that is inconsistent with precedent.
Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:
The court’s decision is based on reasoning that is inconsistent with precedent.
The latter sentence is direct and declarative, and thus more persuasive.
8. Eliminate cliches
When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:
My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”
That sentence is terrible. Instead, say:
My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.
This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.
9. Know what your words mean
Don’t use words that you misunderstand or don’t understand. Consider this example:
The law’s affects will suppress citizens’ First Amendment rights.
Don’t make such a foolish mistake. Instead, say:
The law’s effects will suppress citizens’ First Amendment rights.
And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:
The invidious weather caused the plane crash.
The inclement weather caused the plane crash.
The first sentence would make the reader question the writer’s credibility – for good reason.
10. Lose the adverbs
Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:
The party was extremely loud.
The party was deafening.
The defendant was extraordinarily tired.
The defendant was exhausted.
The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”
11. Lose the adjectives
Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:
The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.
Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:
The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.
The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.
12. Think differently about active versus passive voice
The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.
Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?
The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.
The alleged defamatory statements, which were made by the defendant, are true.
The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.
12. Good judgment leads to good writing
Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.
Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.
Saturday, July 17, 2021
In a recent meeting about teaching Legal Writing, an experienced appellate advocate mentioned practicing “power poses” as part of her prep for an oral argument at the Ninth Circuit. While her comment was a nice way to add humor and humanity to the conversation, the idea of using power poses to add confidence before oral argument stuck with me long after the meeting concluded.
I decided to check out the TED Talk on power poses the advocate mentioned in our meeting: Social Psychologist and Harvard Business Law Professor Amy Cuddy’s TEDGlobal 2012 Your Body Language May Shape Who You Are. https://www.ted.com/talks/amy_cuddy_your_body_language_may_shape_who_you_are. The TED Talk website has a disclaimer at the beginning of Prof. Cuddy’s talk, explaining, “Some of the findings presented in this talk have been referenced in an ongoing debate among social scientists about robustness and reproducibility.” Id. Keeping in mind the debate about the science behind some of Prof. Cuddy’s premises, I decided to focus more on her overall points about body language.
Prof. Cuddy’s general theme is that "power posing" by standing or sitting in a posture of confidence--even when we do not feel confident--can boost subjective feelings of confidence and thereby possibly impact success. Id. She initially focused on non-verbal communications, especially posture, among her MBA students. Cuddy noticed her students who made themselves smaller, with hunched shoulders and crossed arms and legs, tended to earn lower grades than the students whose posture took more space. Looking at controlled human subject students and primates with her collaborator, Prof. Dana Carney of Berkeley, Cuddy also saw a connection between testosterone and cortisone levels and use of power poses like the “Wonder Woman” and “Victory” stances with arms outstretched. Thus, Prof. Cuddy hypothesized people who sit hunched over before a job interview, or in our case an oral argument, will have less confidence than those who stand for a few minutes privately in a power pose before an important talk. See id. Prof. Cuddy stressed she does not believe the power poses are for use “with other people” or to have any impact on substance, but instead can help us feel more comfortable with ourselves and thus preform better. Id.
Commentator Kate Torgovnick May summarized Prof. Cuddy’s point as: “[B]efore heading into a job interview, giving a big speech or attempting an athletic feat . . . everyone should spend two minutes power posing [by] adopting the stances associated with confidence, power and achievement — chest lifted, head held high, arms either up or propped on the hips.” Kate Torgovnick May, Some Examples of How Power Posing Can Actually Boost your Confidence (Oct. 1, 2012) https://blog.ted.com/10-examples-of-how-power-posing-can-work-to-boost-your-confidence/. Torgovnick May provides several testimonials from people who successfully used “Wonder Woman” or other power poses before important classes, interviews, and presentations. See, e.g., id. (“It’s nice to see that there’s scientific support for Oscar Hammerstein’s King and I lyrics: ‘Whenever I feel afraid, I hold my head erect and whistle a happy tune, so no one will suspect I’m afraid …The result of this deception is very strange to tell, for when I fool the people I fear, I fool myself as well.’”)
In bringing these ideas back to my own life, and to our Appellate Advocacy blog, the mom in me could not help but remember my own lawyer mother teaching my sister and me to walk with books on our heads. My mom--like so many other parents—wanted her girls to stand up straight and have confidence. I regularly chide my very tall sons for hunching over, admonishing them to “put back” their shoulders and “stand up straight.” While the scientific community debates the precise reliability of Prof. Cuddy’s work, I know standing with confidence can indeed help me feel and look more confident in court and in the classroom.
Therefore, I recommend you check out Prof. Cuddy’s TED Talk, as well as the debate on her research. And the next time you are especially nervous about an oral argument or presentation, spend two minutes in a power pose. Hopefully, you can smile thinking about the parent, auntie, teacher, or other adult who told you to “stand up straight” years ago. And perhaps this technique will give you increased confidence too.
Saturday, July 10, 2021
Excellent writers know how to write for their audience, not for themselves.
Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.
What criteria would you use to identify the most persuasive appellate briefs?
The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.
Below are five writing tips to maximize the persuasive value of your brief.
1. Use plain language
[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”
Justice Antonin Scalia
When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.
Consider the following example:
As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.
If you were a justice, how would you react to reading this nonsense?
Consider the next example:
The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.
It should be obvious that the second example, although far from perfect, is better than the first.
Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.
2. Be concise
Most people don't like others who talk too much. Judges are no different.
If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.
Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.
Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.
3. Capture the court’s attention
Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.
Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:
This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.
That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:
On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.
Again, it should be obvious why the second example is better.
An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency. All law students should read this brief.
4. Confront the weaknesses in your case and explain why they do not affect the outcome you seek
No one likes a person who is dishonest or evasive.
Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority. And they explain why those weaknesses do not affect the outcome that they seek.
Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.
5. Don’t make ‘red flag’ mistakes
When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:
- Spelling and grammatical errors
- Long sentences (i.e., over twenty-five words)
- Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
- Extremely long paragraphs (a paragraph should never occupy an entire page)
- Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
- Demeaning the lower court or your adversary
- Failing to follow the local court rules
- Including too many block quotes
- Citing overruled authority
- Failing to cite unfavorable authority
- Misrepresenting the record
- Citing legal authority incorrectly
- Requesting a remedy that the court has no power to grant
- Telling the court what it must do, rather than respectfully requesting what it should do
Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.
Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.
Simply put, great writers make great advocates.
Friday, July 2, 2021
Persuading other people to adopt your point of view, whether in a courtroom, a faculty meeting, a debate, or any other context, depends on how you deliver your argument. Below are tips to maximize the persuasive value of an argument.
1. Persuasion is about perception
In many instances, people do not decide whether to accept a particular argument based on facts or science. Rather, their decision is based on their perception of you. And that perception will be influenced substantially by how you deliver your argument. The most important aspect of that delivery is confidence. If you appear confident, the audience will be more likely to agree with you, regardless of contrary facts or evidence.
Simply put, confidence is everything.
Confident advocates take a stand and are bold.
They are unequivocal.
They never get flustered.
They never act surprised.
They never say “um,” or, “I think,” or, “I’m not entirely sure.”
When they receive hostile questions, they react by stating, “I’m really glad that you asked that question.”
In short, if you win the battle of perception, you also likely win the war of persuasion.
2. Make your audience initially agree with you by connecting your argument to commonly accepted values
To win an argument at the end, you have to win at the beginning. And winning at the beginning means connecting your argument to broader values upon which nearly all people can agree. If people agree with the broader values underlying your argument, they will be more likely to accept the specific aspects of that argument. Consider the following examples of two hypothetical lawyers arguing that the First Amendment protects “hate speech”:
The First Amendment protects hate speech because the Founders believed that the right to free speech was essential to liberty and democracy. As a result, offensive, distasteful, and unpopular ideas must be tolerated to ensure that a true marketplace of ideas exists and that people are not threatened by government censorship. Therefore, hate speech, however one might define such speech, must be tolerated.
Ok, whatever. Now consider this example:
Speech that degrades, denigrates, and demeans other people can be terribly hurtful. I’m sure that we can all recall a moment in our lives when another person said something demeaning to us and remember the pain that it caused. And I’m sure we wish that all people realized the harm that words can cause and respected the dignity of every human being. At the same time, most people don’t want the government to become the speech police. They don’t want the government to arbitrarily decide what speech is considered “hate speech,” and what speech is not, thus giving it the power to censor whatever ideas it deems unpopular. If the government had that power, liberty, autonomy, and democracy would be threatened. For these reasons, as much as we may despise those who degrade, denigrate, and demean others, the answer is to fight back by using our free speech rights, not to give the government carte blanche to dictate what we can and cannot say.
The second example appeals to values that most reasonable people accept and view as essential to a free society. And when they agree with these broader values, they are likely to accept the argument that hate speech must receive First Amendment protection.
Simply put, if they agree with you at the beginning, they are more likely to agree with you at the end.
3. It’s ok to be a little unprofessional in the right circumstances
Advocates who are authentic, likable, relatable, and passionate are more likely to sway an audience. And in some instances, authenticity means ‘being real’ and dispensing with formalities when making an argument. In short, sometimes it’s ok to be a little unprofessional. Why? Because it conveys your passion. It shows that you believe in your argument.
Consider the following examples involving two hypothetical appellate advocates who are arguing to the New Jersey Supreme Court the issue of whether defense counsel's performance at trial violated the Sixth Amendment:
In Strickland v. Washington, the United States Supreme Court held that a Sixth Amendment violation occurs where counsel’s performance is negligent and where such negligence results in prejudice, meaning that, but for counsel’s negligence, the outcome of the trial would have been different. This case is a perfect example of ineffective assistance of counsel. Counsel slept during parts of the trial. Counsel admitted to having a cocaine addiction and to being an alcoholic. Yet, the appellate court held that this conduct was harmless error because my client confessed to the crime. Now my client will be incarcerated for twenty-five years for voluntary manslaughter. This decision was erroneous and should be reversed.
Yeah, right. Based on that argument, the appellate court’s decision isn’t going to be reversed. Now consider this example:
My client was represented by counsel who, during the trial, was addicted to and snorting cocaine. He was represented by counsel who smelled of alcohol. And due to the hangovers caused by his frequent cocaine and alcohol binges, counsel fell asleep during the trial, including during the prosecution’s examination of critical witnesses. It should come as no surprise that anyone represented by a drug-addicted, alcoholic, and sleeping lawyer would be convicted. But it should come as a shock that such a conviction would be upheld on appeal. The appellate court didn’t give a shit about this blatant denial of due process. The appellate court didn’t give a shit about the drugs, the booze, and the frequent naps during the trial. To the court, this was harmless error. If that is harmless, it’s difficult to know what would be harmful.
The second example is real. It is raw. It is authentic.
Of course, being a little unprofessional doesn’t give you a license to be a jerk. Never be disrespectful or attack personally your adversary or the lower court. And keep the four-letter words to a minimum. But there are instances in which your passion and authenticity can be best expressed by dispensing with the formalities and being real.
4. Reframe your opponent’s argument
Don’t allow your opponents to frame issues on their terms. Reframe the issues to support your argument and reinforce the commonly accepted values on which they are based. For example, consider the above example regarding ineffective assistance of counsel and how the hypothetical attorney in Example 2 reframes the argument to appeal to basic and commonly accepted values.
The state acknowledges that defense counsel had a drug and alcohol problem and that defense counsel slept during portions of the trial. But that is not the relevant inquiry. The question is whether defense counsel’s performance prejudiced the defendant, such that the outcome of the trial would have been different had counsel performed differently. The answer to that question is no. The conviction should be affirmed.
The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel snorted cocaine during the trial. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel is an alcoholic. The state is asking this court to hold that the Sixth Amendment is not violated when defense counsel falls asleep during a trial and renders the defendant helpless in the legal process. The state is asking this court to hold that attorneys who are addicted to cocaine and alcohol, and who decide to sleep rather than aggressively advocate for their clients, satisfies the Sixth Amendment’s promise of effective assistance of counsel. To accept the state’s argument is to say that the Sixth Amendment has no meaning whatsoever.
Yikes. I wouldn’t want to be a justice on the New Jersey Supreme Court in such a case.
5. Explain with specificity why your position is good policy and will lead to fair and just results
It’s not sufficient that your proposed rule or policy is workable based on the facts of a specific case. The most persuasive arguments demonstrate that such a rule or policy would be workable, fair, and just in future cases and in a variety of contexts.
To achieve this objective, you should do three things. First, make sure that your position is supported by facts and empirical data. Second, acknowledge weaknesses in your position and explain how your rule or proposal addresses such weaknesses and leads to just results. Third, to demonstrate its efficacy and fairness, give hypothetical examples explaining how your rule or proposal would be applied in other contexts.
After all, facts don’t always win arguments.
The law doesn’t always win arguments.
Be confident. Be authentic.
Tuesday, June 29, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the third post in the series.
Do present an honest, accurate position:
- Do include all relevant facts.
Appellate counsel must provide the court all the facts that are relevant to the issues raised in the appeal—yes, even the bad facts. Of course, we want to use word choice, sentence structure, and other techniques to deemphasize the facts that are unfavorable to our client and highlight those that are favorable. And while appellant’s counsel might be tempted to save those “bad” facts for a reply brief—don’t. First, we have an ethical obligation to provide the court all of the relevant facts. Second, it is better to present those “bad” facts first and in the way that is best for our client than to have opposing counsel bring them out first. Finally, disclosing the “bad” facts may enhance our credibility with the court.
- Do cite the record accurately.
The Federal Rules of Appellate Procedure require the appellant’s brief to contain “a concise statement of the case setting out the facts relevant to the issues submitted for review . . . with appropriate references to the record (see Rule 28(e).” Rule 28(e) provides:
References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:
Answer p. 7;
Motion for Judgment p. 2;
Transcript p. 231.
Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
Accurate record cites are important. They allow the court to confirm the accuracy of our representation of the facts, which again, allows us to build credibility with the court. Accurate record cites also allow the court to confirm that we preserved for appeal the issues we raise. Failure to include record cites may result in sanctions.
- Do disclose relevant authority, including adverse controlling authority.
Of course, we’re going to disclose relevant authority that supports our arguments. But what do we do about unfavorable authority that doesn’t control? (We’ll discuss controlling adverse authority in a minute.) If our opponent is likely to cite the unfavorable authority, or the court is likely to discover it, then I think the best approach is to disclose it and find a way to distinguish it. Just as with “bad” facts, disclosing adverse authority allows us to shape how the court views that authority.
We have an ethical duty to disclose adverse controlling authority. For example, the Model Rules of Professional Conduct provide, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Counsel ignored controlling precedent in Gonzalez-Servin v. Ford Motor Co., which led to an interesting set of photographs in the Federal Reporter. After noting counsels’ failure to disclose controlling adverse authority, the court wrote:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.”
The court then included these images in its opinion:
- Do update all cited authorities and exclude any reversed or overruled cases.
Modern research tools make “Shepardizing” authorities a relatively simple task—far less laborious than for those of us who learned using books. But, we can’t just rely on the flags or signals that appear on your screen. We must read the authorities to ensure the flag or signal is accurate for the point upon which we wanted to rely.
An honest, accurate writing style builds credibility and makes our reader’s job easier.
 Fed. R. App. P. 28(a)(6).
 Fed. R. App. P. 28(e).
 E.g. Dennis v. Intl. Paper Co., 58 F.3d 636 (5th Cir. 1995) (“Dennis's brief does not comply with this rule. We are satisfied, based upon the evident carelessness in which Dennis's attorney has presented this appeal and its obvious deficiency on the merits, that Dennis's attorney has persisted in prosecuting a meritless appeal in contravention of § 1927. We find, therefore, that some measure of sanctions is appropriate.”); Plattenburg v. Allstate Ins. Co., 918 F.2d 562, 564 (5th Cir. 1990) (“This brief also fails to make even one citation to the record where relevant . . . .”)
 ABA Model Rule 3.3(a)(2).
 662 F.3d 931 (7th Cir. 2011).
 Id. at 934, quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).
Tuesday, June 22, 2021
When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves. But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia. Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling. Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.
The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.
Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.
Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.
No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.
 In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).
 593 U.S. __ (2021).
 494 U.S. 872 (1990).
 See Gentithes, supra note 1, at 341.
 See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).
Sunday, June 20, 2021
In Fulton v. City of Philadelphia, the United States Supreme Court confronted the question of whether the City of Philadelphia could deny a contract to a Catholic foster care agency (Catholic Social Services) because the agency refused to provide service to same-sex couples. The city argued that the agency's policy violated the city’s anti-discrimination law, which prohibits discrimination based on, among other things sexual orientation.
By way of background, in Employment Division v. Smith, the Court held that neutral laws of general applicability that incidentally burden religion do not violate the Free Exercise Clause of the First Amendment. Writing on behalf of the majority, Justice Antonin Scalia relied in part on Reynolds v. United States to hold that the Free Exercise Clause does not permit religious organizations to receive exemptions from generally applicable laws. Justice Scalia reasoned that to allow such exemptions “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself." Justice Scalia held that religious exemptions could be granted only when an alleged violation of religious liberty was coupled with a violation of another constitutional right. For example, in Wisconsin v. Yoder, the Court held that the parents of an Amish child were exempt from a generally applicable law requiring all children to attend public school until the age of sixteen because the law infringed on both the parents’ religious liberty and the fundamental right to direct the upbringing of their children.
The Court’s decision in Smith has proved quite controversial, as some argue that it is inconsistent with the original purpose of the Free Exercise Clause. And Smith has been implicated in recent disputes involving the balance between accommodating individuals’ religious beliefs and protecting citizens against discrimination. For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a cakeshop owner refused to design a custom wedding cake for a same-sex couple, arguing that doing so would violate his religious beliefs. The State of Colorado argued that the cakeshop owner's refusal violated its generally applicable anti-discrimination law, which prohibited discrimination based on sexual orientation. The facts in Masterpiece Cakeshop arguably presented the Court with the issue of whether Smith should be overruled.
But the Court avoided the question.
Instead, it ruled on very narrow grounds, holding that the Colorado Civil Rights Commission had demonstrated hostility toward the cakeshop owner’s religion when addressing his claim. As a result, Masterpiece Cakeshop resolved nothing. The decision provided no clarity or guidance to courts and citizens regarding the Free Exercise Clause. It was a missed opportunity.
Not surprisingly, three years later in Fulton, the same issue arose again when Philadelphia denied a contract to Catholic Social Services because it refused to offer services to same-sex couples. As in Masterpiece Cakeshop, the Court was faced with the question of whether Smith should be overruled.
Yet again, the Court avoided the question.
Instead, in an opinion by Chief Justice Roberts, the Court issued a very narrow decision in favor of Catholic Social Services, holding that Philadelphia’s anti-discrimination law was not generally applicable because the city retained the discretion to grant exemptions to the law. This led to a narrow, unanimous ruling for Catholic Social Services. But again, the decision failed to resolve the underlying question of whether Smith should be overruled and avoided addressing how to balance an individual’s right to religious liberty against another individual’s right to be free from unlawful discrimination. The result is that one of the most sacrosanct constitutional rights – the free exercise of religion – is now marred in constitutional purgatory, with no clarification or guidance about the scope of this right and the limits on state power.
Fulton was legal gymnastics at its finest. And politics at its worst.
Sadly, the decision in Fulton is yet another example of Chief Justice Roberts's disappointing jurisprudence.
To be clear, by all accounts Chief Justice Roberts is a brilliant and ethical jurist – and a great person. Roberts is deeply committed to preserving the Court’s institutional legitimacy and to avoiding the perception that politics and ideology motivate the Court’s decisions. To that end, Roberts strives to achieve consensus on the Court and avoid controversial 5-4 decisions. To reach consensus, Roberts seeks to decide each case on the narrowest ground possible, which often has the effect, as in Masterpiece Cakeshop and Fulton¸ of rarely addressing the fundamental constitutional issues that undergird many cases and, concomitantly, failing to clarify the law.
The ugly truth about this approach is that it causes precisely what Chief Justice Roberts hopes to avoid: it politicizes the Court, undermines its institutional legitimacy, and destabilizes the rule of law. And it causes Roberts to become precisely what he disavows: a political actor.
As stated above, it is politics at its worst.
Unfortunately, even a cursory examination of Roberts’s jurisprudence in recent years reveals that his decisions often result from political calculations rather than principled constitutional considerations.
Indeed, Roberts’s decision in Fulton was eerily reminiscent of his decision in National Federation of Independent Investors v. Sebelius, where the primary issue confronting the Court was whether the Affordable Care Act violated the Commerce Clause. Roberts agreed that the Act violated the Commerce Clause, yet after initially voting to invalidate the Act, Roberts reversed course and concluded that the Act was a proper exercise of Congress’s taxing power. It was apparent that Roberts was trying to find a way – any way – to avoid issuing a decision that might compromise the Court’s legitimacy, lead to a divisive decision, and be perceived as political.
Yet, Roberts created precisely that result. The Court’s legitimacy was damaged because the decision was so obviously based on political calculations, not constitutional principles.
This is not the first time that Roberts has engaged in legal gymnastics that elevate politics over the rule of law and provide no clarity, guidance, stability, or predictability on important legal issues affecting civil rights and liberties. For example, in June Medical Services v. Russo, Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. Roberts argued that, based on the Court’s decision in Whole Women’s Health v. Hellerstadt, where it invalidated a nearly identical law in Texas (although Roberts dissented), principles of stare decisis required him to invalidate the Louisiana law.
But Roberts’s jurisprudence shows that he has an on-again, off-again relationship with stare decisis. In Janus v. American Federation of State, County, and Municipal Employees, Council 31, which addressed a union’s ability to collect fees from non-union members, Roberts joined the majority in overruling Abood v. Detroit Board of Education, which had been valid law for over forty years. And in Citizens United v. FEC, Roberts joined a 5-4 majority that invalidated a federal law restricting independent expenditures from corporations; in so holding, the Court overruled Austin v. Michigan Chamber of Commerce, which held that restrictions on corporate speech did not violate the First Amendment. Thus, Roberts’s reliance on stare decisis in June Medical Services was about as disingenuous and manipulative as it gets. Simply put, when a concern for institutional legitimacy triumphs over the rule of law, the result is an unprincipled jurisprudence that at its core is political.
If Chief Justice Roberts values the Court’s institutional legitimacy, he should prioritize the rule of law and base his decisions on reasonable interpretations of the Constitution. He should stop avoiding the real issues that are presented in each case. He should make decisions based on what he believes, not on how others may react to a particular decision. In doing so, Roberts would demonstrate that he is faithful to the Constitution and the rule of law, and that his decisions are based on principle, not politics.
To date, sadly, Chief Justice Roberts has become the Court’s most political actor. And the Court is unquestionably a political institution.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 See id.
 494 U.S. 872 (1990).
 See id.
 See id.
 406 U.S. 205 (1972).
 See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners, available at: 20200602142513866_19-123 CCJ tsac.pdf (supremecourt.gov)
 138 S. Ct. 1719 (2018)
 See id.
 See id.
 No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)
 567 U.S. 519 (2012).
 See id.
 2020 WL 3492640 (2020)
 138 S. Ct. 2448.
 558 U.S. 310 (2010).
Sunday, June 13, 2021
Moot Court is an important class in law school because it teaches students the skills necessary to be effective appellate advocates. Below are five rules that moot court students – and practicing appellate advocates – should follow when arguing before an appellate court.
1. Start strong
First, begin with a powerful opening sentence that captures the court’s attention. Of course, don’t be too general or overly dramatic. Instead, ask yourself how you would describe in one sentence why you should win. The answer should be your opening sentence.
Second, use the Rule of Three. After your opening sentence, immediately and concisely provide the court with three reasons supporting the outcome you seek. Be sure that they are clearly delineated and supported by the record and relevant law.
Third, tell the court what remedy that you are seeking and the rule you would like the court to adopt. The court needs to know what you want and why giving you what you want would result in a workable rule that can be applied fairly and consistently to future cases. Put simply, the beginning of your argument is a roadmap for the court to follow that will lead to a ruling in your favor.
Consider the following examples by attorneys who are appealing a district court’s decision to dismiss via summary judgment their client’s defamation case on the ground that the alleged defamatory statements were constitutionally protected opinion:
May it please the court. The First Amendment is sacrosanct in our society. Ensuring a robust marketplace of ideas is essential to a democratic society. To that end, unpopular ideas are protected from government censure and even the most distasteful comments warrant First Amendment protection. But sometimes, people cross the line and say things that neither the First Amendment nor common decency should countenance. The founders did not intend for any speech, no matter how harmful, to receive First Amendment protection, as the United States Supreme Court has recognized in cases like Miller v. California and Brandenburg v. Ohio. This is one of those cases. The harm caused to my client by the statements made against him is actionable under federal law.
What nonsense. If I was the client and listened to this opening, I would cringe and possibly run out of the courtroom. Now consider this example:
May it please the court. The appellee’s statement implied underlying false facts, was defamatory as a matter of law, and caused severe reputational harm. First, the statement that my client was “a disgusting person and attorney who would lie to any client to make money,” implied that my client was an incompetent and unethical lawyer. Under United States Supreme Court jurisprudence, these statements are actionable and defamatory. Second, the statement is verifiably false. As demonstrated in the over fifty reviews by former clients, my client's inclusion in the Best Lawyers in America for the past ten years, and his selection as the Lawyer of the Year last year, the statement is untrue. Third, the statement has subjected my client to harm and ridicule in the community. Several clients have fired him. Many have sent him offensive emails. He has been suspended from the State Ethics Committee on which he served. For these reasons, we respectfully request that this court overturn the district court’s grant of summary judgment by applying the well-settled principle that opinions implying underlying facts can – and often are – defamatory.
The difference should be obvious.
2. Answer the judges’ questions.
Perhaps the most important part of an oral argument at the appellate level is the judges’ questions. Those questions provide insight into, for example, concerns the judges may have about one or more of your arguments or the rule that you would like them to adopt. They are also an opportunity – indeed the best opportunity – to make your case to the judges.
To do so, you should follow two basic rules. First, answer the questions directly. Do not try to avoid them or give answers that may sound persuasive but that aren't responsive. You are a lawyer, not a politician. If you give evasive answers, you will lose credibility with the judges. You will show that you lack effective responses to the judges' concerns. And that will undermine the strength of your argument. Thus, be sure to answer the questions directly. Those answers may require you to acknowledge weaknesses in your case, such as unfavorable facts or law. Who cares. The best attorneys concede these points and explain why they do not affect the outcome they seek.
Second, the best attorneys pivot seamlessly from the question back to their argument and thus continue the argument with excellent organization and flow. Consider the following examples:
Judge: Counselor, as bad as this statement may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: Well, the real issue here is about the harm. My client’s reputation has been severely and, perhaps, irreparably harmed by this statement. And the record amply supports that fact. So, the technical distinction between pure opinions and opinions implying underlying facts is really just an argument about semantics.
Judge: Let me try this one more time. What criteria would you use to distinguish pure opinions from opinions implying underlying facts?
Attorney: With all due respect your honor, that is not the question in this case. The question is whether my client was defamed. The answer is yes.
That is simply terrible. Now consider this example.
Judge: Counselor, as bad as these statements may seem, stating that someone is a ‘disgusting person’ is pure opinion. If we accepted your argument, almost any statement could be construed as asserting an underlying fact, thus compromising core First Amendment values. So where would you draw the line or, to put it differently, what criteria would you use to distinguish between pure opinions and those that imply underlying facts?
Attorney: The distinction is verifiability. Pure opinions cannot be proven to be factually false. For example, if a person says, “the New York Yankees are a bad team,” that would be a pure opinion because what one considers ‘bad’ is subjective. But if a person said, “The New York Yankees are only a good team because of the stuff their players take to enhance their performance,” that would be an opinion that implies underlying facts because it can be proven that the players do not take performance-enhancing substances. In this case, the appellee did not simply say that my client was a ‘disgusting person.’ He said that he was a ‘disgusting person and attorney who would lie to any client to make money.' We can verify, through affidavits and sworn testimony, that he never lied to a single client about any matter pertaining directly or indirectly to their representation. And that is why the rule we ask this court to adopt is neither novel nor unworkable. We simply ask that you apply well-settled precedent stating that opinions implying underlying false facts can be defamatory. Indeed, in this case, they most certainly were defamatory.
Again, the difference should be obvious.
3. Have a conversation with the court
During an oral argument, you should be yourself and have a conversation, not a confrontation, with the court. The judges are not your enemies. They are simply trying to reach the fairest outcome that is consistent with the law and justified by the facts. Thus, you should be friendly and respectful, realizing that, as an advocate and as an officer of the court, your responsibility is to help the judges reach the best result while remaining faithful to your client’s objectives.
The best way to do this is to provide the court with a practical and workable legal rule that can be applied fairly and consistently to future cases. Remember that appellate judges are not focused exclusively or even primarily on your client. They are focused on whether the outcome they reach and the rule they adopt will provide workable and just in future cases, both as a matter of law and policy. For this reason, the best appellate lawyers advocate fiercely on their clients' behalf but also propose legal rules that the court believes will provide clarity, fairness, consistency, and predictability in future cases.
4. Don’t screw up on the basic aspects of appellate practice
Never make the basic mistakes, namely, the ‘red flag’ errors that undermine your credibility and your case. For example:
- Know the record
- Know the law (and please make sure your legal authority remains valid law)
- Know the standard of review
- Write an outstanding – and concise – appellate brief and remember that the brief is more important than the oral argument
- Never be disrespectful to the lower or appellate court, or the adversary
- Follow the federal or state rules, and the local rules
- Don’t make weak arguments
- Cite cases and other authority
- Know the difference between binding and persuasive authority
- Have realistic expectations and communicate those expectations to your client
- Don’t use notes at oral argument
- Be honest
- Don’t be a jerk
This list is certainly not exhaustive. But if you violate one of these rules, your chances of winning will be compromised – as will your reputation.
5. Have a short list of ‘non-negotiable’ legal arguments
It’s difficult to predict what will happen in an oral argument. Some appellate panels ask many questions, which is known as a ‘hot’ bench. Some ask few questions. Sometimes, the judges raise issues that you don't expect or ask questions that you have difficulty answering. Regardless of what happens at an oral argument, you should always have a list in your mind of the arguments that are so essential that you must communicate them to the court, no matter what the direction or focus of the argument.
And remember, there are some things that cannot be taught or that require significant practice. Those are a lawyer's: (1) charisma; (2) personality; and (3) persuasiveness. The best appellate advocates have all three.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Sunday, May 23, 2021
Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks. This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.
So, here we go again.
Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.
This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support. In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.” Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text. Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.
Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.” The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.” These scholars are correct – Roe was one of the worst decisions of the twentieth century.
Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse. In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks. In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother. In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.
Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.
But the states opposing abortion did. Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.
The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.
As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.
Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.
Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.
That will end the inquiry and the uncertainty.
But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.
Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.
Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.
 Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).
 410 U.S. 113 (1973).
 Id; 381 U.S. 479 (1965).
 Id. at 484.
 410 U.S. 113.
 Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner
 505 U.S. 833 (1992).
 136 S. Ct. 2292 (2016); 2020 WL 3492640.