Monday, June 8, 2020
Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian. Today I am sharing an interview that I did recently with David Lat. David is the founding editor of the popular blog Above the Law. He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19. He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background. Thanks David for joining me for the interview!
Edited: Sorry about the video issues, I think that it is fixed.
June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, June 7, 2020
The death of George Floyd was tragic and appalling. The video that showed Officer Derek Chauvin’s knee on Floyd’s neck for almost nine minutes was disturbing. Sadly, many unarmed African-Americans have been fatally shot by law enforcement, and although most officers have been acquitted of criminal conduct based on these events, they have been tragic and involved the questionable, if not unnecessary, use of force.
This is not to say that the majority of law enforcement officers are bad people. Most strive to – and do – protect their communities. But the events this past week have rightfully renewed a call to address problems in the law enforcement community and issues related to inequality. Below are a few thoughts regarding how to address the broader issue of inequality and achieve a society where equal opportunity exists for all citizens.
I. Focus on Institutional Corruption, not merely Institutional, or Systemic, Racism
There can be no doubt that racism and discrimination exist throughout the United States. Indeed, the legacy of, among other things, slavery, segregation, and Jim Crow have caused incalculable social and economic harm to African-Americans that continue to this day. As such, achieving equality and eradicating discrimination in all of its forms is a moral and categorical imperative.
To do so, however, it is not sufficient to rely upon an overly general assertion that the United States is currently an institutionally or systemically racist society. Although institutional racism certainly existed for much of this country’s history, it does not exist to nearly the same degree in contemporary society. For example, federal and state laws outlaw discrimination. Public universities have prioritized diversifying their student bodies and faculty. Private employers have made laudable efforts to diversify their workforces. Affirmative action programs have increased access to education for traditionally disadvantaged groups. This is merely a representative sample of the efforts reflecting a commitment to equality of opportunity and evincing a condemnation of practices that, by design or in effect, discriminate against particular groups.
Of course, although institutional racism is no longer ubiquitous, there can be no doubt that some institutions remain racist or, at the very least, retain policies that disparately impact traditionally marginalized groups. Accordingly, the best path to achieving equality would be to identify, at the county, state, and federal level, the specific institutions that remain institutionally or systemically racist – and to develop workable policy prescriptions to remedy the infirmities in these institutions. Put differently, it does little, if any, good to recite the proposition to institutional or systemic racism exists because these terms are overly broad and thus make it difficult to develop workable and sustainable remedies for specific problems.
Additionally, scholars and policymakers place insufficient emphasis on institutional corruption. This concept, which was developed by Harvard Law School Professor Lawrence Lessig, states as follows:
Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.
Simply put, institutional corruption does not involve violations of the law. Rather, it refers to the degradation of an institution’s underlying values, and how the institution’s actions, although not illegal, undermine the public trust.
The United States Department of Justice’s investigation into the tragic death of Michael Brown – and the Ferguson Police Department – is instructive. The Department cleared Officer Darren Wilson of wrongdoing but, in so doing, found that the Ferguson Police Department was institutionally corrupt. That is, although the Ferguson Police Department did not engage in illegal activity per se, its policies and practices disproportionately and unfairly impacted African-American residents, thus highlighting the need for principled reforms.
II. Focus on Crime Prevention by Addressing the Underlying Causes of Criminality
There can be no doubt that reforms to policing practices (and legal doctrines, such as qualified immunity) are necessary in some jurisdictions to ensure that police brutality ends and that the lives of African-American suspects (and all suspects) are not needlessly lost. This may include eliminating specific physical restraints, making changes to police training methods, and revisiting the qualified immunity doctrine.
But such reforms are not enough.
Legislators and policymakers must address a critical issue that has nothing to do with law enforcement – the underlying causes of criminality in the African-American community (and all communities, for that matter) – and strive to reduce criminal behavior.
Regarding this issue, the landmark report of former Senator Daniel Patrick Moynihan is also instructive, albeit controversial. In that report, Senator Moynihan found that, by the mid-1960s, nearly half of African-American families were in the middle class. In subsequent years, however, that progress stalled. Senator Moynihan posited that the decline of the nuclear family and the increase in single-parent families contributed to this problem as part of a “tangle of pathology,” which included “delinquency, joblessness, school failure, crime, and fatherlessness.” These factors, Moynihan concluded, created a “self-perpetuating cycle of deprivation, hardship, and inequality.” Decades after its publication, the Urban Institute revisited Senator Moynihan’s report and concluded that African-Americans “still suffer from the intersecting disadvantages that Moynihan called a ‘tangle of pathologies,’ with each negative factor reinforcing the others.” Specifically, the Urban Institute noted that children “born into single-mother families [approximately 72% of African-American children] are far more likely to be poor and persistently poor than children born into two-parent families,” and that “[h]igh-poverty neighborhoods suffer from high rates of crime and violence, poor schools, and weak connections to the labor market.” Consequently, these factors may be responsible, in part, for criminality and inequality of opportunity.
But the Moynihan Report’s findings do not tell the whole, or even most important part, of the story. Perhaps the most deleterious effect of the systemic discrimination that continued until the mid-twentieth Century was the disparity in the quality of education at the grade and high school levels. To make matters worse, in San Antonio School District v. Rodriguez, the United States Supreme Court held that the funding of public schools based on property tax revenue did not violate the Fourteenth Amendment. The practical effect was far-reaching and long-lasting: children from wealthy neighborhoods received a better education than children from poor neighborhoods. That, in a nutshell, made equality of opportunity illusory for poor children of all races. As the Urban Institute noted, “[y]oung people from high-poverty neighborhoods are less successful in school than their counterparts from more affluent communities: they earn lower grades, are more likely to drop out, and are less likely to go on to college.”
Make no mistake: racism is and continues to be part of the problem. Indeed, the Urban Institute noted that “race remains a factor in determining economic opportunities and outcomes,” and that “aggressive enforcement of antidiscrimination statutes as well as affirmative action policies are required to ensure equal opportunity.” Police brutality, of course, is also a problem, and the recent protests are a testament to citizens’ rightful anger, at such brutality although those citizens who engaged in violence and other criminal activity should not be considered protesters in any sense whatsoever.
But the path to equality requires policymakers and scholars to do far more than focus on law enforcement. For the promise of equality to become a reality for all citizens, researchers and scholars must develop policies that address community and family issues, and that remedy the disparities in education at the grade and high school levels.
III. Reform Federal and State Sentencing Guidelines – and Reentry Programs
At the federal and state level, sentencing guidelines often authorize the imposition of unnecessarily long and unprincipled sentences. Additionally, during incarceration, the criminal justice system often provides inadequate support and treatment for mentally ill inmates. And upon release, these individuals, many of whom are members of traditionally disadvantaged groups, have deteriorated substantially and lack the social and economic support to successfully reintegrate into society. Not surprisingly, they frequently engage in criminal conduct and return to prison, where the cycle continues.
Thus, reforming sentencing law to enhance rehabilitation-based programs for inmates – and prioritize support for inmates upon release – is critical to reducing crime.
IV. The Millennial Sequence
The path to the middle class – and away from criminality – is attainable for citizens of all backgrounds. Specifically, the American Enterprise Institute has found that, among millennials, “getting at least a high school degree, working full-time, and marrying before having any children,” facilitates upward mobility into the middle class:
[The] divergent paths toward adulthood are associated with markedly different economic fortunes among Millennials. Young adults who put marriage first are more likely to find themselves in the middle or upper third of the income distribution, compared to their peers who have not formed a family and especially compared to their peers who have children before marrying … This pattern holds true for racial and ethnic minorities, as well as young adults from lower-income families. For instance, 76% of African American and 81% of Hispanic young adults who married first are in the middle or upper third of the income distribution, as are 87% of whites.
In fact, this sequence is almost certain to reduce, if not eliminate, the likelihood that an individual will live in poverty:
97% of Millennials who follow what has been called the “success sequence”—that is, who get at least a high school degree, work, and then marry before having any children, in that order—are not poor by the time they reach their prime young adult years (ages 28-34). The “success sequence,” so named by Brookings Institution scholars Ron Haskins and Isabel Sawhill, has been described as the path into adulthood that is most likely to lead towards economic success and away from poverty.
The problem, however, is that “young adults aged 28 to 34 from lower-income families are about half as likely to have completed the success sequence, or be on track with the sequence, compared to their peers from upper-income families.”
This short article cannot capture in sufficient detail the many issues relevant to inequality. Ultimately, however, and perhaps most importantly, the solution to this problem requires citizens of all races and backgrounds to come together in a spirit of reconciliation, with a commitment to eradicating racism and discrimination, and with an openness to diverse perspectives. It does no good to maintain an almost-exclusive focus on, for example, white privilege (the extent of which cannot be quantified and differs based on intersectional factors), and implicit bias (which evidence suggests does not correlate with biased behavior). These arguments rightfully identify problems impacting inequality, but without more, they have no practical impact on improving the day-to-day lives of African-Americans. If anything, now is the time to come together and recognize that what we have in common far outweighs that which we do not, and to collectively devote our efforts to achieving equality – and equal protection of the law – for all citizens. After all, what happened to George Floyd, and many others, should never happen again. The United States Constitution guarantees equality for all citizens and whenever the effects of inequality manifest – as they did in Minneapolis – the Founders’ vision for a more perfect union vanishes.
 Institutional racism is generally defined as state-sponsored policies that discriminate against or disproportionately impact traditionally marginalized groups.
 Edmond J. Safra, Institutional Corruption, available at: https://ethics.harvard.edu/lab
 See United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at: https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf
 Kay S. Hymowitz, The Black Family: 40 Years of Lies, (2005), available at: https://www.city-journal.org/html/black-family-40-years-lies-12872.html
 Gregory Arcs, The Moynihan Report Revisited (June 2013), available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF
 411 U.S. 1 (1973).
 Arcs, supra note 6, available at: available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF\
 W. Bradford Wilcox, The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ Among Young Adults (June 2017), available at: https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/
Sunday, May 31, 2020
Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.
Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.
I. The Drafting Stage
The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.
In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.
After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”
II. The Rewriting Stage
The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:
- Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
- Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
- Eliminating unnecessary repetition;
- Eliminating irrelevant facts;
- Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
- Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.
Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.
III. The Revision Stage
During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:
- Making paragraphs and sentences shorter;
- Varying sentence length;
- Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
- Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
- Including transition words to ensure flow and clarity;
- Eliminating words that convey ambiguous or unintended meanings;
- Reducing the number of quotes;
- Deleting repetitive sentences;
- Eliminating cliché phrases and colloquial language;
- Ensuring that your brief is written in the active voice (for the most part);
- Using the CTRL+F feature to search for overused and unnecessary words; and
- Submitting your document to an online editing service, such as Grammarly.
Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.
Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.
Tuesday, May 26, 2020
In May, while the world was still trying to adjust to life during quarantine, the Texas Office of Court Administration was hit by a ransomware attack. While the details are still a bit sketchy because of an ongoing investigation, we do know that the State refused to pay the demanded ransom, shut down the infected systems, and has struggled since then to continue its work via alternate channels.
For appellate attorneys, this has been particularly frustrating. The systems that were shut down include some of the case notification mechanisms, so attorneys are finding out via social media whether they won or lost an appeal. In some cases, the court's access to the record appears to have been lost, so advocates are being asked to help provide case information and records back to the court. Throughout it all, Texas courts have somehow managed to not only continue to work but to lead in holding remote oral arguments and hearings and in continuing to push their dockets despite the quarantine and a crippled IT infrastructure.
In a past life, I worked as a systems administrator and technician, and even wore a "white hat" while hacking to test security. So I am familiar with the challenges in preventing ransomware attacks. This post, however, isn't written for the IT crowd. I hope to give some advice to the attorneys and professors who generally ignore such posts, but are often the source of the problem.
First, you need to know that ransomware attacks generally follow a set pattern. The attackers implant software that helps them gain control of a system, usually be encrypting data so it is no longer usable. They then notify the victim of the attack and demand a ransom, usually in bitcoin or another cryptocurrency. If the ransom is paid, they promise to decrypt the data. Sometimes they do, sometimes they do not.
Where do you, the user, fit into this scheme? Usually, you are the point of infection. By taking a few precautions you might prevent the next attack, or help with the restoration that follows.
1. Don't be the Source of the Infection.
Most ransomware is spread by Phishing, or emails that entice you to click a link that then loads the software onto your computer. Your IT department is serious when it asks you not to click on links from outside sources. The same goes for email attachments, and for links sent via text.
Some attacks start with "social engineering," or gaining access to sensitive information from users that can be used to guess passwords. Avoid the social-media posts that ask you cute personal questions and share with your friends. Even if your password isn't related to your date of birth, favorite pet, child's name, or other seemingly harmless bit of data, one of your friends' passwords might well be. Or, the attacker might use that information to personalize an email phishing attack that is just too hard to resist.
Finally, avoid using public wifi, or if you do, use the VPN that your employer has most likely set up for you. This is probably less common now that we are trying to stay in place, but is still a common source of attack.
2. Help Preserve your Data.
If there is an attack, the target is the sensitive data that you hold. Most likely, that data will be locked away and inaccessible for awhile, if not forever. If your firm or court is going to recover, it needs your help.
Make sure that you keep up with backups. And, if you are working from a court's electronic record available online, do yourself (and the court) a favor and download that information rather than just relying on the online version. After suffering data corruption and other issues, I even email myself drafts of briefs as I progress in writing so that nothing is lost. The idea is to keep multiple copies on multiple storage devices, so that if one fails, there is still a way to recover. Some sensitive data will have to be more restricted, but in general, on appeal at least, we are working with public records that can be stored in multiple places.
3. Remember that Confidentiality is a Ethical Responsibility.
Ransomware attacks are up across the board. There are even some healthcare providers that have been targeted, although some of them have been offered "discounts" on the ransom because they are essential service providers. Don't think that you are not a target. More importantly, don't think that your client's confidential information is not a target.
Indeed, law firms are increasingly the target of security intrusions. To protect clients, Comment 8 to Rule 1.1 of the ABA Model Rules imposes a duty of competence that includes keeping abreast of the "benefits and risks associated with relevant technology." Recently, Formal Opinion 483 clarified that the lawyer's duties include both taking all reasonable efforts to protect clients from data breaches and informing them when one occurs.
In the end, protecting client data is the professional responsibility of the attorney. You can't just blindly rely on your IT department or contractor and avoid that responsibility. Instead, you must be aware of the vulnerable world we live in, and take steps to be safe with not just your personal health, but the health of your data as well.
(Image attribution: "Virus" by kai Stachowiak, CC0 public domain license)
Monday, May 25, 2020
My colleague, Prof. Susie Salmon, recently started a podcast called Practice in Place: Law and Justice Go Viral. You can find the first episode here. The premise of the podcast is as follows:
[H]ow does a profession governed by precedent respond to the unprecedented? Practice in Place investigates how the practice of law and the administration of justice have adapted under the abrupt constraints of the COVID-19 era, how that has affected how and whether we achieve justice, and how those changes and that experience might or should change the practice, the profession, and its procedures forever. Produced by University of Arizona, James E. Rogers College of Law and hosted by Professor Susie Salmon and the Legal Writing Program.
I am pretty excited about the project. For a forthcoming episode, I interviewed Sean Marotta, a partner at Hogan Lovells, and Raffi Melkonian, a partner at Wright Close & Barger, for their thoughts on the pandemic and the future of appellate practice. For those who would like to hear our full discussion, I have posted the video below. Sean and Raffi had insightful tips on surviving the pandemic, keeping your kids occupied, what they saw legal practice looking like in the next few months, and keeping sane. I also provide my insights on the going rate for finding typos in briefs. Enjoy!
Saturday, May 23, 2020
In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.
I. The Court’s Decision
By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.
In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime. Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.” Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness. Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.” Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”
The Court got it wrong.
There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong. Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.
Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”
Justice Breyer explained as follows:
A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.
That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.
III. Broader Problems With the Insanity Defense
The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling. Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.
As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.
Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.
Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.
 See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf
 Id. (internal citation omitted).
 A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.
 This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.
Wednesday, May 13, 2020
This blog post might provide you with information you already know. The information is new to me, which made me think sharing it might assist others as well. As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye. That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.” The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194.
A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016! That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic. And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.
The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur. It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues. It suggests that courts create certain model orders and court rules to use in the event of a pandemic. It also provides a resources list that includes citations to state courts that already had such plans back then. From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.
I highly recommend you review this document, if you have not already seen it. Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves. Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead. I only wish we did not need your good book.
May 13, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument, State Appeals Courts | Permalink | Comments (2)
Sunday, May 10, 2020
The criminal justice system’s treatment of mentally ill offenders is woefully inadequate and alarmingly ineffective. Indeed, the treatment of such offenders – from arrest to conviction – often exacerbates their psychiatric disorders and enhances the likelihood that they will re-offend – or die while trying to reintegrate into society.
Below is a summary of various aspects of the criminal justice system that highlight the inadequate treatment provided to mentally-ill defendants.
I. Before trial
First, criminal defendants with mental illnesses, such as schizophrenia, bipolar disorder, and major depression, often languish for many months in state prisons while awaiting trial. During this time, many mentally ill defendants, some of whom have been declared incompetent to stand trial, fail to receive adequate psychiatric care and often receive little to no counseling or other support services. As a result, their mental health frequently deteriorates substantially while awaiting trial in overcrowded and underfunded prisons, or in psychiatric hospitals where the primary, if not exclusive, objective is to restore the defendant to a minimum level of competence. The deleterious effects of these substandard and, in some cases, inhumane conditions are debilitating and long-lasting.
II. During trial
At a criminal trial, mentally-ill defendants often find it difficult, if not impossible, to demonstrate that their respective mental illnesses were a substantial or proximate cause of a crime's commission and that, accordingly, they are less culpable (or not responsible at all). Although defendants may plead the insanity defense, this defense is only used in approximately one-percent of cases and is unsuccessful in approximately seventy-five percent of those cases. The reason is that most jurisdictions follow the M'Naghten rule, which requires a showing that a defendant was mentally ill or impaired at the time of the crime’s commission and that the defendant did not appreciate the wrongfulness of his or her conduct (i.e., could not distinguish between right and wrong).
The latter prong of the M’Naghten test makes it extremely difficult for defendants to prove insanity. Simply put, a mentally ill defendant may technically or abstractly understand that particular conduct is unlawful but, due to the deleterious effects of mental illness (e.g., impulse control, irrationality, delusions), the defendant may lack the intentionality necessary to comport with the law.
III. Incarceration after conviction
Many mentally-ill defendants are found guilty and sentenced to lengthy periods of incarceration in an environment that is highly likely to exacerbate, rather than ameliorate, their respective mental illnesses. Specifically, being confined for prolonged periods of time without meaningful social interaction, receiving insufficient psychiatric care and evaluation, and having little to no support services (e.g., counseling, cognitive behavioral therapy) all but guarantee that mentally-ill inmates will deteriorate, if not decompensate, while incarcerated. The result is that, upon release, mentally-ill defendants struggle to reintegrate into society and achieve emotional and financial stability.
IV. Inadequate post-release support
Upon release, mentally ill defendants often receive insufficient mental health treatment. Although mental health courts in some states have improved the type and quality of care provided to some defendants, particularly those convicted of minor crimes, many defendants with mental health issues who have deteriorated substantially while incarcerated receive substandard care upon release.
Indeed, courts are often reticent to approve a post-release in-patient treatment program for mentally-ill defendants. Thus, these defendants, some of whom are suffering from severe mental health issues, typically receive only out-patient care, and the compliance rates for these defendants vary substantially. Furthermore, the outpatient care that mentally ill defendants receive is often woefully inadequate, consisting of only periodic psychiatric assessments, including regarding the efficacy of medication, and only a modest degree of individualized counseling at state-run hospitals of dubious quality. Moreover, in some cases, the implementation of an outpatient program is delayed upon release, which leaves mentally ill defendants without any care whatsoever for days, if not weeks.
V. The results – recidivism and suicide
Not surprisingly, upon release, and lacking adequate mental health support, a substantial portion of mentally ill defendants fail to successfully reintegrate into society:
Once in jail, many individuals don't receive the treatment they need and end up getting worse, not better. They stay longer than their counterparts without mental illness. They are at risk of victimization and often their mental health conditions get worse. After leaving jail, many no longer have access to needed healthcare and benefits … Many individuals, especially without access to mental health services and supports, wind up homeless, in emergency rooms and often re-arrested. At least 83% of jail inmates with a mental illness did not have access to needed treatment.
And in some instances, these defendants commit suicide. This was precisely the result that occurred when my brother, Marc Lamparello, committed suicide three weeks ago by jumping off the Verrazano Bridge in New York.
On April 17, 2019, Marc, who had previously been diagnosed as schizophrenic, was arrested and charged with attempted arson after entering St. Patrick's Cathedral in New York City with four gallons of gasoline. For the next year, Marc spent most of his time at Riker's Island prison in New York, with an intermittent stay at a psychiatric hospital in New York before he was transferred back to Riker’s Island while he awaited trial.
During his time at Riker's Island, including in the last five months, Marc received psychiatric medication but was provided with no therapy or other support services whatsoever. Incarcerated in an overcrowded and underfunded prison, Marc’s condition continuously deteriorated while it took the state criminal court months to approve a plea bargain and effectuate his release. As part of his release, Marc was required to immediately undergo intensive outpatient therapy – five times per week for six hours per day. And by the time of his release in mid-March, Marc's condition had deteriorated so substantially that immediate and sustained treatment was necessary to save his life.
But that never happened. For thirty days, Marc did not receive any treatment whatsoever. At first, Marc’s caseworker and psychiatric hospital explained that, due to coronavirus concerns, Marc had to quarantine for fourteen days. Subsequently – and without explanation – Marc was dropped from the treatment program.
Only days later, on April 10, 2020, Marc attempted to jump off of the George Washington Bridge in New York City. His life was saved when law enforcement officers rescued him before he could jump. In the next few days, Marc’s family implored doctors at the psychiatric hospital to which he was admitted to enroll Marc in the hospital’s in-patient program. They declined.
Instead, the hospital released Marc only five days later.
Two days after his release, Marc jumped off of the Verrazano Bridge in New York and died. Marc's death highlights the woefully inadequate treatment that he received during and after incarceration. In short, the manner in which Marc was treated during and after incarceration was disgraceful.
This is not to say, of course, that incarceration is neither necessary nor desirable for many defendants, including those with mental illnesses, particularly those convicted of violent crimes. It is to say, however, that the criminal justice system's approach to treating mentally ill defendants is glaringly inadequate. Given this fact, scholars, practitioners, and public policy experts should continue to emphasize before courts and legislatures the need to reform the criminal justice system’s substandard treatment of mentally ill defendants.
The current paradigm is fundamentally unjust.
*This post is dedicated to my younger brother Marc Lamparello, who died on April 17, 2020, at the age of 38. Rest in peace, Marc.
 See The Sentencing Project, Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription, available at: https://www.sentencingproject.org/wp-content/uploads/2016/01/Mentally-Ill-Offenders-in-the-Criminal-Justice-System.pdf
 See Paul Tullis, When Mental Illness Becomes a Jail Sentence (Dec. 2019), available at: https://www.theatlantic.com/politics/archive/2019/12/when-mental-illness-becomes-jail-sentence/603154/
 See Natalie Jacewicz, 'Guilty But Mentally Ill' Doesn't Protect Against Harsh Sentences (Aug. 2016), available at: https://www.npr.org/sections/health-shots/2016/08/02/486632201/guilty-but-mentally-ill-doesnt-protect-against-harsh-sentences
 See Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (Oct. 2003), available at: https://www.hrw.org/report/2003/10/21/ill-equipped/us-prisons-and-offenders-mental-illness
 See Jo Sahlin, The Prison Problem: Recidivism Rates and Mental Health (May 2018), available at: https://www.goodtherapy.org/blog/prison-problem-recidivism-rates-mental-health-0520187
 See generally, Released inmates need programs to meet basic mental health needs, study shows (Jan. 2014), available at: https://www.sciencedaily.com/releases/2014/01/140106103737.htm
 National Institute of Mental Health, Jailing People with Mental Illness, available at: https://nami.org/Advocacy/Policy-Priorities/Divert-from-Justice-Involvement/Jailing-People-with-Mental-Illness
 See Jan Ransom, An Arrest at St. Patrick's, a Struggle for Help, Then a Suicide (April 30, 2020), available at: https://www.nytimes.com/2020/04/30/nyregion/marc-lamparello-suicide-st-patricks-arson.html
Sunday, April 19, 2020
In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.
Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome.
Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.
1. Tell a story
In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:
When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,
When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”
The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.
Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language.
Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.
2. Don’t be argumentative
One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.
3. You can – and should – still advocate
Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.
4. Acknowledge unfavorable facts
Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.
5. Eliminate irrelevant facts
You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:
The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.
6. Describe the record accurately
Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.
7. You can include law in the facts if it's appropriate
When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:
On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.
As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.
8. It's not just what you say, but how you say it
Be sure to draft a well-written, well-organized, and concise statement of facts. For example:
- Avoid long sentences (over twenty-five words)
- Avoid complex or esoteric words (and Latin)
- Use transition words to ensure flow and clarity
- Avoid unnecessary repetition
- Avoid long paragraphs (paragraphs should be approximately three to five sentences)
- Eliminate unnecessary adjectives and minimize the use of adverbs
- Avoid nominalizations
- Never insult the lower court or your adversary
- Ensure that your brief is free of spelling errors and grammatically correct
- Know when to break the rules to maximize persuasion
Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.
Sunday, April 12, 2020
Given the unprecedented and challenging times that have arisen due to the coronavirus, many courts (and law schools) are now conducting oral arguments online (e.g., via Zoom). For many lawyers and most law students, this is likely the first time in which they have been required to deliver oral arguments online.
Below are several tips (some rather obvious) to help lawyers and law students deliver effective and persuasive online oral arguments.
1. Make sure that you are positioned correctly
When giving an oral argument – or any presentation – online, be sure to observe the following guidelines.
First, whether you are seated or standing, make sure that the camera on your computer is at eye level. Second, you should position yourself so that you are approximately at arm’s length from the camera. Third, to ensure that you are making eye contact with the judge (or professor) always look straight into the camera and avoid looking at the screen. Fourth, make sure that your volume is at the appropriate level so that you can be heard clearly.
2. Choose a professional background
Be sure to position your desk and computer in an area that includes a professional background and that omits any distracting images. Additionally, eliminate all excess noise.
Also, make sure that the lighting is properly set. For example, if there is too much light in the background, it can cast a glare on the screen and distract the person to whom you are speaking. Finally, be sure to dress professionally.
3. Avoid Unnecessary Physical Gestures
When presenting your argument, avoid unnecessary movements (e.g., hand gestures), particularly those that will take you out of the camera’s range. Unnecessary movements will distract your audience and detract attention from the substance of your argument.
4. Get to the point quickly – the judge (or professor, or anyone) may get more easily distracted in an online format
In an online oral argument, there is an increased possibility that a judge (or professor, or anyone) may get distracted more easily, particularly if the environment within which a judge or professor is hearing the argument is less than ideal (e.g., in a home where other family members are present in the immediate vicinity). As such, you should prepare a short, one-page outline that contains the strongest legal and factual arguments supporting the remedy you seek and state them at the beginning of your argument. Indeed, the most persuasive oral arguments include a powerful beginning where an attorney: (1) states clearly the outcome and remedy that the attorney seeks; and (2) explains why the law and facts support that outcome. In doing so, be sure to omit extraneous or irrelevant facts and legal authority.
5. Follow all of the rules regarding oral argument as if you were giving the argument in person
You should approach online and in-person oral arguments in the same way. For example:
- Have a powerful introduction and roadmap
- State clearly the outcome you seek and begin with the most favorable law and facts that support this outcome
- Address weaknesses in your case (e.g., unfavorable law and facts) and explain why they do not affect the outcome you seek
- Answer the judge’s questions directly
- Be prepared to adjust your argument strategy depending on the questions and concerns expressed by the judge (or judges)
- Always be honest – never mislead the court or attempt to hide unfavorable law or facts
- Don’t be a jerk – never attack your adversary and never use over-the-top words or unnecessary adjectives
6. Be prepared for technical issues
Technical issues sometimes arise when using online platforms such as Zoom or Skype. For example, when I was interviewed via Skype for a faculty position several years ago, my screen suddenly went black and I could not see the faculty members who were interviewing me (although they could still see me). If any technical issues arise, be sure to maintain your composure and go with it. Indeed, in the interview where my screen went black, I still got the job.
7. Remember that this is new for everyone
Don’t be intimidated or overly concerned about performing an effective online oral argument. This is a new experience for many judges and law professors. At the end of the day, just be yourself – speak conversationally and remember that the skills needed to deliver excellent in-person oral arguments are largely the same as those needed to deliver excellent online oral arguments. And appreciate that, in delivering an online oral argument, you are learning a new skill that may prove valuable in the future.
Sunday, March 29, 2020
The spread of the coronavirus has resulted in law schools transitioning to online learning. The delivery of legal education online certainly presents challenges for law students and legal writing professors (and professors generally). Below are tips (some rather obvious) that can hopefully contribute to facilitating a reasonably smooth transition to teaching legal writing online, and in a manner that: (1) maximizes students’ attainment of relevant learning outcomes; and (2) creates a supportive learning environment.
1. Be clear about the requirements and expectations going forward
The spread of the coronavirus – and the transition to online legal education – will cause many students to experience increased stress, uncertainty, and anxiety, the severity of which will vary based on each student's circumstances. Indeed, these effects will impact some students more directly and substantially than others.
To facilitate the transition to online education, professors should communicate clearly to students the requirements and expectations regarding assignments and grading, particularly if assignments or grading policies have been modified. For example, many law schools have decided to transition to pass/fail (or credit/no credit) grading for all courses. As such, professors should explain to students the criteria that distinguish passing from failing grades (e.g., a passing grade is the equivalent of a ‘C’ or better).
2. Provide students with writing checklists to make them aware of your grading criteria and to help students edit their work
Professors should consider creating a one or two-page checklist that sets forth the criteria (essentially, the rubric) that they will use when assessing the students’ work. Doing so will enable students to focus their writing and editing on the most relevant aspects of an assignment (e.g., effective topic sentences, proper IRAC structure), and help them to produce their best work.
3. Draft a one or two-page summary each week highlighting the major points of that week's classes
As stated above, the transition to online learning will likely cause many students to experience increased stress and anxiety due to, for example, increased family obligations and financial difficulties. Indeed, students may have less time to devote to their studies or simply struggle to focus on their work, particularly if they are living with family members or home-schooling children. For these and other reasons, students may struggle to complete reading assignments or otherwise dedicate sufficient time to mastering the material.
Drafting a one or two-page summary of the major points covered each week (with examples) will simplify the material and help students focus their attention on the most relevant legal writing skills.
4. Shorten the remaining assignments
In courses where students are required to write, for example, a pre-trial motion, appellate or trial brief, professors should consider shortening their assignments if the circumstances warrant. For example, professors may consider requiring students to write only the legal argument section of a pretrial motion or appellate brief. And professors can consider incorporating smaller, problem-based assessments to focus on areas that may not be required in a summative assessment.
5. Consider reducing or even eliminating the research aspect of an assignment
Some students will have reduced access to internet service and to electronic platforms such as Westlaw, Lexis, and Casetext. As such, professors should consider closed universe assignments that provide students with relevant legal authority.
6. Be as accessible as possible and provide as much feedback as possible
The transition to online learning will significantly impact students’ ability to meet with their professors for individualized feedback and support.
Two approaches may lessen the resulting impact on students. First, professors can hold a few optional classes for the entire class, in which the professor provides generalized feedback on the students’ work and offers suggestions for improvement. Second, professors can, at the outset of online learning, hold 10-minute conferences in which the professor provides support and feedback to each student (based on, for example, prior assignments). And in providing feedback, be mindful that students lack access to some, if not all, of the support services (e.g., a writing center, face-to-face interaction, academic success) that were previously available. This should cause law schools who remain on a grading system to consider adjusting their grading curve upward or permitting students who are particularly disadvantaged the option to take one or more courses on a pass/fail basis.
7. Consider holding online legal writing classes only once per week
This suggestion may not apply to some law schools, but at law schools where legal writing courses are held two or more times per week, professors should consider switching to a once-a-week format. Doing so will enable law professors to devote sufficient time to discussing the relevant material and reduce the burden on students who may struggle to coordinate their schedule in light of personal circumstances.
8. Take ten minutes at the end of each class to show that you care
Certainly, this is a difficult time for law students and law professors. One way to help students is to devote ten or fifteen minutes at the end of each class to simply asking the students how they are doing and encouraging them to share their respective experiences. Doing so will help to create a constructive ad supportive learning environment.
9. Be optimistic and inspire students
Many students will probably rely to some degree on professors and others to provide support during this difficult time. This places professors in a position to offer encouragement, optimism, and inspiration to their students, and to show students that they can succeed despite adverse circumstances.
10. Balance compassion with rigor
Certainly, this is an extraordinary time that requires compassion and understanding for students. At the same time, compassion should be balanced with rigor. Professors should continue to challenge students to put forth their best effort and reward those who produce the highest quality work. Indeed, just as this is a time for compassion, it is also an opportunity to teach students that, no matter what circumstances they may face in life, they must possess the mindset and coping skills to succeed despite adversity.
11. Take care of yourself
Law students and law professors should be particularly mindful of their physical and mental health during this period. Exercise. Eat healthy foods (and junk food in moderation). Practice mindfulness techniques. Communicate with friends and family. Do things that make you happy (listening to Elvis Presley’s music is likely to create substantial happiness) and remember that this, too, shall pass.
Saturday, March 21, 2020
I hope everyone is staying safe as we navigate our new COVID-19 reality. In response to the virus, some law schools are canceling oral arguments and moot courts, while others are considering moving arguments online.
At Pepperdine Caruso School of Law, we just successfully held the preliminary rounds of our annual first-year moot court competition via Zoom. We are one the first schools to take such a large tournament--with multiple levels of rounds and cash prizes--online. As I helped move us to an online format in one crazy week, so many people inside and outside of Pepperdine gave me incredible support. In an effort to pay that support forward, I am sharing our process here. I hope our lessons can help other schools and moot court competitions make this transition. Our experience was very positive. The students are grateful we gave them a formal oral argument opportunity, and many sent thank you emails and even fun Zoom screen shots to us.
In practice, many of us have appeared via video or phone for short hearings, and even for appellate oral arguments. See https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000995 (video and audio recordings of the Ninth Circuit argument in Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019), where Judge Wardlaw appeared via Zoom). Currently, courts all over the country are holding their oral arguments online. See, e.g., https://www.courts.ca.gov/2dca.htm (California Court of Appeal website noting: “Counsel will appear remotely via video conference, by telephone conference, or by other electronic means as available and arranged by the Clerk's Office”).
We knew we wanted to give our students the traditional moot court experience in these new circumstances, and we chose to conduct arguments using Zoom. We made one major change from the past, as we decided to let students opt out of the arguments to help students who had to leave our dorms quickly or who were otherwise struggling. Happily, about half of our first-year students still chose to participate.
We usually have two teams of two advocates each, or four students, argue in each room of our preliminary argument rounds. With about 90 students arguing this year, we placed 4 students and 2 judges in each of our 23 Zoom "courtrooms."
To run courtrooms at more or less the same time, we needed 23 Zoom host judges who could create Zoom meetings open to anyone with the links. These judges also kept time, though we had the students run timers on their phones too. We suggested on-screen timers shared to the whole courtroom, but the students were concerned the timers would take too much screen space, even with Zoom’s side-by-side view.
Once we identified trusted members of our community to be the Zoom host judges, we created and shared a step-by-step guide for making an open Zoom link. We asked hosts to name their meetings "Courtroom One 4:15," and so on. We then collected the hosts' Zoom links and added them to our Google Sheet listing all the students, courtrooms, and argument times. We shared the sheet with the courtroom assignments and links to all of our first-year competitors.
We had great support from our faculty, who joined some Moot Court Team members and Law Review students, as well as a few alums, to be our roughly 40 judges. Some judges helped with multiple rounds, and many judges told us this was almost as fun as in-person arguments.
We ran three preliminary rounds, to spread out the ability for our Moot Court Board and me to “Zoom in” to meetings and help as needed. We used ten courtrooms each during two evening rounds, and we needed to pop in to only two courtrooms to help. The next morning, our three courtrooms ran without a hitch. Having trusted judges as hosts really helped, and we recommend this approach.
We made our score sheet into a Google Form for the judges. It was fun to watch the scores roll in after the rounds. Moreover, our competition co-chairs had a spreadsheet right away with the score sheet data. These chairs could quickly identify our top four teams for the semi-final round, unlike when they type in scores from paper forms.
We will have four teams in our semi-final round Monday night, and then the top two will go to our final round Wednesday night. We will share the Zoom link for our final round courtroom with our whole school, and we will have sitting judges serving on our final round bench. We made the judges a separate deliberation room Zoom meeting, to be doubly sure their voting discussion will be confidential.
In our law school virtual classrooms today, we can still give our students a traditional first-year highlight by moving oral arguments online. Many of our courts are doing the same thing, and after holding these successful digital arguments at Pepperdine, I can promise you will be glad you saved moot court by moving online too.
Monday, March 16, 2020
Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.
Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)
In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.
Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)
In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.
Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)
Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.
Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)
Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.
Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)
Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.
Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)
In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.
Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)
Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.
William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)
The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.
Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)
Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips.
Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)
In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.
Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.
Sunday, March 8, 2020
On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.
By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion. In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.
The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas. In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.
At oral argument, the justices appeared divided.
Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.
Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.
Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.
Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.
Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”
And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.
Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.
I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.
Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.
Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.
 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).
 579 U.S. ; 136 S. Ct. 2292 (2016).
 See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.
 Id. at 61:24 to 62:9.
March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Sunday, March 1, 2020
The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints
Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”
Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean. Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.
Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.
Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.” As Justice Ginsburg explained:
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.
Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.” Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”
In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.” As one commentator described:
They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).
Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”
Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”
 Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap
 See id.
 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).
 Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 Id. (emphasis added).
 Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1
 Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html
 David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).
 Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.
 Williams and Fieldstadt, supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).
 Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).
Friday, February 28, 2020
Every appellate practitioner knows oral argument rarely changes a case outcome. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument. This time can be hard to justify to clients, but an advocate must be prepared for oral argument. See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).
In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing. For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief. Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.
In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar. My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place. This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page. Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument. The binder should be tabbed and organized for very quick reference. The process of making the binder is also very useful for both final brief editing and oral argument preparation.
On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court. Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early. See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020). Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table. One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points. Advocates also have an organized binder if they do need to check something quickly.
In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side. The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief.
I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents. Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading. I ask my first-year students to make this page before turning in their briefs. I suggest they then use the paper as an editing checklist for the brief. The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing. Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.
In the law school setting, making the oral argument sheet before filing the brief is also efficient. First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument.
In practice, however, we often wait months after filing a brief for oral argument. Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice. By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument. Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time. Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.
For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder. Doing so can show where you have missed something in briefing and can save time later.
Sunday, February 23, 2020
One question that most, if not all, attorneys have asked themselves when drafting an appellate brief is: “When should I stop researching?”
This concern is certainly understandable. After all, the last thing that an attorney wants is for a judge to ask “Why didn’t you cite X case, which is directly relevant to the legal issue before the court?” or state “I would agree with your argument counselor, except for the fact that X case was decided by the Supreme Court four years ago and the Court ruled against your position.” If this happens, you will be embarrassed, you will lose credibility with the court, and your client will have little if any chance of succeeding on the merits.
To avoid this problem, attorneys must research a legal issue sufficiently to ensure that they know, among other things, the relevant legal standards, including the standard of review, the governing precedent (particularly cases that are factually similar), and favorable and unfavorable authority. But how do attorneys know when they have done enough research? They rely on several criteria (along with experience) to make this determination and ensure that they are fully prepared to draft an excellent brief or deliver a persuasive oral argument.
1. Identify the appropriate scope of your research
Before you begin researching, you should identify the universe within which you should be researching. Doing so will enable you to identify the sources of binding legal authority and ensure that you confine your research to the most relevant precedent. When making this determination, ask yourself the following questions:
- Is your case in state or federal court?
- Does your case involve a state or federal issue?
- Does the legal issue involve a common law cause of action, statute, constitutional provision, or administrative regulation?
- Are you arguing for a correction in a lower court's decision or an expansion of the law?
- Have the courts in your jurisdiction previously addressed the legal issue or is it an issue of first impression?
For example, if your case is in state court and involves a state law issue, your legal research will focus primarily on prior decisions in your state by the state supreme court and the appellate courts. If your case is in federal court and involves a federal issue, your research will focus primarily on decisions from the circuit in which you are litigating. If your case is in federal court and the legal issue involves a state law claim, your legal research (on the substantive law) will focus on decisions by the state supreme court and appellate courts.
You must also identify whether the legal issue relates to a common law cause of action, statute, or constitutional provision. If, for example, you are appealing a case where a state court found that your client acted negligently, you should only research cases in that state (from the state supreme court and the appellate courts). In such a case, your research should focus primarily on cases decided by courts within your jurisdiction that have applied and interpreted the relevant law, and that involve similar facts, if possible.
Importantly, the above advice applies to cases where you are arguing for a correction in the law.
If, however, you are arguing for an expansion of the law, you will likely expand your research to cases from courts outside of your jurisdiction that have considered this issue and that have expanded the law in the manner that you are advocating. For example, if, in 2015, you were arguing before the Sixth Circuit Court of Appeals that same-sex marriage bans violated the Fourteenth Amendment’s Equal Protection Clause, you should have cited in your brief and at oral argument the Seventh Circuit’s decision in Baskin v. Bogan, which previously held that same-sex marriage bans violate the Equal Protection Clause.
Consequently, in cases where, as in the above example, the law is unsettled in your jurisdiction (or is an issue of first impression) you can and should rely on cases from other jurisdictions that have addressed this issue. Although this precedent is not binding on the court, doing so will help to guide the court in reaching an informed and, hopefully, favorable decision.
Ultimately, determining the scope of your research is critical because it will enable you to identify the sources of binding, as opposed to merely persuasive, authority and it will ensure that you avoid conducting unnecessary or irrelevant research.
2. Look for repetition
You will likely know that you have researched a legal issue sufficiently when you encounter repetition in the relevant case law. For example, if you are researching the negligence standard and you read fifteen cases in which the courts rely upon the same criteria to determine if a party was negligent (i.e., duty, breach of duty, causation, and damages), you can be confident that you’ve identified the relevant legal standard. Likewise, if you are researching how the courts define causation for purposes of determining negligence and you read several cases where the courts recite the same test or standard for causation, you can be confident that you’ve researched causation sufficiently. Additionally, if you continue to find the same legal authority despite using different research methods, you’ve probably located the relevant authority.
You should also strive to identify cases that involve similar facts and you should rely only on cases that reach a favorable result. Never rely on a case that, although supporting your recitation of the relevant law, reaches a conclusion that undermines the argument you are making or the remedy you are seeking.
3. Review the cases in your opponent’s brief
You should review the cases in your adversary’s brief. Doing so will enable you to identify relevant (and likely unfavorable) legal authority that you may have failed to discover in your research. In addition, you should review carefully how your adversary presents relevant case law to ensure that your adversary is not misrepresenting precedent.
4. Read the briefs submitted by the parties in prior cases that involve the same or similar legal issue
To the extent possible, read the briefs submitted by the parties in prior and relevant cases. In so doing, you may discover additional cases that you did not find in your research or you may simply confirm that you have sufficiently researched a particular legal issue.
5. Identify the cases cited by courts in prior decisions
You should identify the cases that courts in your jurisdiction have relied upon when deciding the same or similar legal issue. This will facilitate and expedite your research and it will provide you with the specific cases that courts found influential when deciding the issue.
6. Research the subsequent history of the cases you cite in your brief
Be sure to research the subsequent history, if any, of the cases you rely upon in your brief or at an oral argument. In so doing, you will discover whether there is negative history that impacts the persuasive value of the cases upon which you are relying and whether a case has been overruled.
The above tips are not intended to be exhaustive. However, adhering to these tips will enable you to decide when to stop researching and provide you with the assurance that you’re prepared to draft an excellent brief or deliver a persuasive oral argument.
Wednesday, February 19, 2020
Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students
A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.
First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record. These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.
Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.
Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.
In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.
1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).
2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).
February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Sunday, February 16, 2020
In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs. By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs. The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.
Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?
In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing. Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.
The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases. To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”
Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests. The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.
First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”
Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion. As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”
Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices. Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.
In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest. However, in City of Boerne, the Court held that the Act does not apply to the states. Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.
Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.
If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.
As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.
 138 S. Ct. 1719 (2017).
 See id.
 See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”).
 U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).
 521 U.S. 507, 564-65 (1997).
 See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).
 98 U.S. 145, 166 (1878).
 485 U.S. 439 (1988).
 508 U.S. 520 (1993).
 Id. at 547.
 494 U.S. 872 (1990).
 Id. at 878.
 374 U.S. 398 (1963).
 42 U.S.C. § 2000bb-1(a)(2012).
 521 U.S. 507.
 138 S. Ct. 1719 (2017).
February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)
Sunday, February 2, 2020
When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.
1. You fail to follow the local court rules
The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.
2. You seek a remedy that is outside of the court’s authority
When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).
Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.
You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.
Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.
3. You overstate the relevance of precedent
Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.
Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.
4. You are not direct with the court
Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:
- Identify the errors in the lower court’s decision
- State the remedy that you would like the court to provide
- Explain why you are entitled to this remedy
- Briefly provide the facts and relevant law that support your position
If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.
5. You do not consider the relevant standard of review
Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.
Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.
6. You do not organize your brief effectively
Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:
- Headings and subheadings that are rarely, if ever, longer than one sentence
- A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
- Paragraphs that only discuss a single point or issue and that always begin with a topic sentence
If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).
7. You file an unnecessarily lengthy brief
Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.
Simply put, less is often more.
8. You make basic writing or stylistic errors
Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:
- Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
- Use block quotes unless absolutely necessary
- Include overly long paragraphs
- Repeat arguments
- Use complex or esoteric words
Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.