Appellate Advocacy Blog

Revisiting George Orwell and Good Writing

This semester, I am lucky enough to be teaching a seminar I designed on bias in legal analysis and writing.  The class has been a delight, and I am impressed every week by my thoughtful and dedicated students. 

In one of our sessions, I proposed using George Orwell’s writing rules, along with his broader concerns with “Doublespeak” and “Big Brother,” to add clarity and remove bias from writing.  Several of my students have included these ideas in the class papers they are drafting, and I hope these tips help you draft as well.

In his pre-1984 essay, Politics and the English Language, Orwell proposed six rules on using English, and he repeated these in later works as well.  Many commentators have discussed using the rules for clarity, but I believe we can also combat bias with these ideas.

Here are Orwell’s rules, as summarized by Judith Fischer in her article Why George Orwell’s Ideas About Language Still Matter for Lawyers, 68 Mont. L. Rev. 129, 135 (2007): 

(i) Never use a metaphor, simile or other figure of speech which you are used to seeing in print.

(ii) Never use a long word where a short one will do.

(iii) If it is possible to cut a word out, always cut it out.

(iv) Never use the passive where you can use the active.

(v) Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.

(vi) Break any of these rules sooner than say anything outright barbarous.

See also Austin Wayne Schiess, Writing a Brief the George Orwell Way, 14 App. Advoc. 6, 6-6 (2001). 

How can we use these rules in appellate writing?  

1. Avoid Cliches. Fischer notes: “Think out of the box” and “avoid cliches like the plague.” 68 Mont. L. Rev. at 137.  But seriously, some cliches are racist and many are unclear.  Remove them from your writing as much as possible.

2. Prefer Shorter Words. I am old enough to remember when courts imposed motion and brief page limits, long before word limits. I recommend reading your own work as if you have page limits and word limits.  This can help you remove legalese, redundant wording, and unneeded long terms.  In his blog, Demian Farnworth suggests practicing by using only monosyllabic words.  The monosyllabic approach can add many words and decrease clearness, but it is a fun way to practice writing with shorter terms.  See https://copyblogger.com/short-sentences/ (Oct. 19, 2015).

3. Be Concise & 5. Avoid Jargon. (I’ve already blogged about Rule 4, Use Active Voice, often.) Use concision as an enemy of bias and obfuscation.  As Justice Ginsburg reminded us, our readers “simply don’t have time to ferret out one bright idea buried in too long a sentence.”  Remarks on Appellate Advocacy, 50 S.C. L. Rev. at 567 (1999).  One way to practice being concise and removing jargon is by reviewing any manual for a small appliance in your home.  Review these manuals for lengthy clauses and odd technical jargon.  My family’s favorite is our toaster manual, which often uses five words where one will do, and adds confusing technical details like “LED light indicator surround ring” for what is in fact the “toasting” light.  Finding these lengthy and confusing terms around the house will help you edit for concision in your briefing.

6. Use Common Sense--Break Any of these Rules If they Reduce Clarity.  Recently, I learned there is reasonable debate about exactly what Winston Churchill said regarding ending a sentence in a preposition. Nonetheless, we know he said something close to:  “This is the sort of English up with which I will not put.”  See https://brians.wsu.edu/2016/11/14/churchill-on-prepositions/.  We can follow our own common sense, like Churchill and Orwell.  As another example, sometimes one longer clause reads better than a series of short, choppy sentences.  Let’s follow rules on clarity above all else.

Are these rules enough?  Orwell did not think so, as evidenced by his concern over “Doublespeak” and obfuscation.  To follow Orwell, therefore, we should make sure our words say what we mean.  While this sounds simple, any experienced appellate writer knows editing takes time and effort.  I hope Orwell’s rules help in this editing task.

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

GPT-4 Just Passed the Bar Exam. That Proves More About the Weakness of the Bar Exam Than the Strength of GPT-4.

It's official: AI has passed the Uniform Bar Exam.  GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers. 

"Guess you're out of a job," my wife said when I told her the news. 

Maybe she's right--unless, of course, the bar exam isn't actually an effective measurement of minimum competence to practice law. 

That's the open secret of the legal profession.  Bar exams do test a small handful of core legal skills, such as critical reading and basic legal analysis.  But they're downright abysmal at measuring the multitude of skills that separate competent and incompetent lawyers, such as legal research, writing ability, factual investigation, crisis response, communication, practice management, creative problem solving, organization, strategic planning, negotiation, and client management. 

I am hardly the first commentator to draw attention to this issue.  In Shaping the Bar: The Future of Attorney Licensing--which should be required reading for anyone interested in the attorney-licensing conundrum--Professor Joan W. Howarth says this:

Bar exams are both too difficult and too easy.  The exams are too easy for people who excel at multiple-choice questions.  Wizards at standardized tests can pass the bar with little difficulty, perhaps with a few weeks spent memorizing legal rules, without showing competence in a greater range of lawyering skills or any practice in assuming professional responsibility. 

And, bar exams are too difficult for candidates who do not excel at memorizing huge books of legal rules.  An attorney would be committing malpractice by attempting to answer most new legal questions from memory without checking the statute, rules, or case law.  Leon Greene, the dean of Northwestern Law School in 1939, observed that "there is not a single similarity between the bar examination process and what a lawyer is called upon to do in his practice, unless it be to give a curbstone opinion."  The focus on memorization of books of rules was silly in 1939, but today it is shockingly anachronistic, as attorneys asked for "curbstone opinions" would be carrying a complete law library on their phones.  Extensive rule memorization makes bar exams less valid, meaning that they test attributes not associated with competence to practice law.  Law graduates who would be great lawyers--too many of whom are people of color--are failing bar exams because they cannot drop everything else for two months to devote themselves to memorizing thick books of rules.

Against this backdrop, is it really a surprise that a literal learning machine beat 90% of the human test takers?

Predictably, the National Conference of Bar Examiners quickly issued a press release once the news broke about GPT-4 acing its exam.  The NCBE said that human attorneys have unique skills, gained through education and experience, that "AI cannot currently match."  And, on that score, I wholeheartedly agree.  But that raises the question many of us have been asking for years: If "skills," "education," and "experience" (not mass memorization, regurgitation, and fact-pattern recognition) are what set the best lawyers apart, why aren't we using those qualities to measure minimum competence?

___________________________________________________________

Philip Seaver-Hall is a litigation attorney at Knox McLaughlin Gornall & Sennett, P.C.  The views expressed in this post are the author's alone and are not necessarily shared by the Knox Law Firm. 

ChatGPT and Legal Writing

ChatGPT is an artificial intelligence chatbot that can, among other things, compose music, play games, and generate student essays and examination answers. Indeed, ChatGPT has already been studied to assess its efficacy on law school examinations. One study, for example, revealed that ChatGPT passed four law school exams at the University of Minnesota -- earning an average grade of C+ -- and an exam at the University of Pennsylvania’s Wharton School of Business.[1]

The leader of the study examining ChatGPT in the law school performance context stated that “[a]lone, ChatGPT would be a pretty mediocre law student," and emphasized that “the bigger potential for the profession here is that a lawyer could use ChatGPT to produce a rough first draft and just make their practice that much more effective.”[2]

Certainly, in law school and in the legal profession, ChatGPT can have benefits. For example, ChatGPT can enhance efficiency by, for example, producing rough drafts of basic legal documents such as complaints, memorandums, interrogatories, and document requests.  Additionally, ChatGPT can assist individuals who cannot afford legal services in producing competent legal documents.

What ChatGPT cannot do, however, is teach law students how to think, how to write, and how to persuade. That, in a nutshell, is the point – and the problem. Below are two concerns regarding ChatGPT’s effects on law school and the legal profession.

1.    Law students need to learn how to think critically.

Learning how to think critically is among the most important skills needed to be a competent lawyer. And in recent years, many students begin their first year of law school lacking this skill. Thus, during the first year of law school, particularly in doctrinal and legal writing courses, students learn, among other things, how to read cases, understand complex legal concepts, synthesize the law, and apply the law to different fact patterns.

ChatGPT is problematic because, in some contexts, it does the thinking for the students. In so doing, it enables students (to some extent) to avoid the admittedly arduous process of understanding and interpreting complex legal doctrines, and presenting such doctrines (e.g., in a memorandum or a brief) in an understandable, logical, and persuasive manner. Indeed, David Kemp, an adjunct professor at Rutgers Law School, stated that “[i]f you’re asking it to organize several concepts, or are struggling to explain something in a way that’s really understandable, it can help.”[3]

That, again, is the point – and the problem.

Students should not be relying on artificial intelligence to organize complex legal concepts or explain them in a way that readers can understand. They should, through hard work and perseverance, develop critical thinking skills so that they can do it themselves. Otherwise, we are training students to rely not on their minds or their legal training, but on a technology that, at best, produces mediocre results.

Perhaps some would describe this as an “old school” approach to legal education. And they would be right. The quality of law students at many law schools has steadily declined in recent years, and ChatGPT threatens to worsen this problem by doing for law students what they should, after three years of legal training, be able to do for themselves.

2.    Law students need to learn how to write competently and persuasively.

It is no secret that judges and lawyers often criticize law graduates for their poor writing skills.[4] The reasons for this include, but are not limited to, insufficient preparation during students' undergraduate coursework, and insufficient dedication to required legal writing courses in law school.

This fact, however, only underscores the need to train students to think – and write – like lawyers. Students need to learn, for example, how to research the law, how to craft a compelling narrative, how to synthesize legal authority, how to reconcile unfavorable facts and law, and how to draft an organized and well-structured legal argument.

To do so, students need to embrace the writing process, which involves writing, rewriting, and editing. It requires critical thinking. Hard work. Perseverance. And the ability to write effectively and persuasively. ChatGPT is not going to teach students how to do this because, at least to some extent, it will do it for them. That makes the problem worse, not better.

To be sure, ChatGPT may produce the equivalent of a mediocre first draft, which students will then edit and re-edit to improve its quality. But good legal writing is not simply about editing. To be an excellent editor, you must first be an excellent writer and re-writer. That means embracing the writing process and acquiring the skills needed to draft, for example, a persuasive motion or appellate brief. As one professor explains.

Legal writing faculty interviewed by the ABA Journal agree that ChatGPT writing can model good sentence structure and paragraph structure. However, some fear that it could detract from students learning good writing skills. ‘If students do not know how to produce their own well-written analysis, they will not pass the bar exam,’ says April Dawson, a professor and associate dean of technology and innovation at the North Carolina Central University School of Law.’[5]

Professor Dawson may be correct that ChatGPT will reduce bar passage rates. What it will almost certainly do is ensure that students never become excellent persuasive writers. And it will also cause some students to rely on ChatGPT to do the hard work that they should be doing, and that is necessary, to produce quality legal work.  This is the risk that reliance on ChatGPT – particularly for complex legal motions and briefs – engenders.

Ultimately, ChatGPT can certainly have benefits. Among those is increasing efficiency and productivity. But law students still need to have the analytical thinking and writing skills to be able to interpret complex legal texts, draft persuasive legal arguments, and present compelling arguments before a court.  As such, ChatGPT’s benefits must be balanced against the need to train students to think, write, and practice like lawyers.

Perhaps this is an “old school” approach, but that approach has produced extraordinary attorneys who have transformed the law and the legal profession through their advocacy.

Simply put, you cannot replace an intelligent, thinking human being.

 

[1] See Samantha Murphy Kelly, “Chat GPT Passes Exams from Law and Business Schools” (January 26, 2023), available at: ChatGPT passes exams from law and business schools | CNN Business

[2] Reuters, “Chat GPT Passes Law School Exams Despite ‘Mediocre’ Performance” (January 25, 2023) available at: ChatGPT passes law school exams despite 'mediocre' performance | Reuters.

[3] Kelly, supra note 1.

[4] See Ann Nowak, The Struggle with Basic Writing Skills (March 1, 2021), available at: The Struggle with Basic Writing Skills | Published in Legal Writing (legalwritingjournal.org)

[5] Kelly, supra note 1.

The Rhetoric of ChatGPT: What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

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

The Rhetoric of ChatGPT:  What ChatGPT Had to Say About Its Connection to Rhetoric and What We Can Learn from That Response

I’ve been thinking about what ChatGPT might mean for the practice of appellate lawyers and their ability to be persuasive.  So, I typed this as a prompt for ChatGPT:

 I am writing a blog post for an audience of appellate lawyers. What should I tell them about the relationship between rhetoric and ChatGPT?

Here’s what ChatGPT replied:

Rhetoric is the art of using language effectively to persuade or influence an audience. In many ways, ChatGPT can be seen as an extension of this art, as it uses natural language processing to generate persuasive and compelling responses to a wide range of prompts.

One of the key advantages of using ChatGPT for rhetorical purposes is its ability to quickly generate high-quality content in a wide range of styles and formats. This can be particularly useful for appellate lawyers, who need to produce persuasive legal arguments and compelling briefs that are tailored to the specific needs of their clients.

At the same time, it's important to remember that ChatGPT is a machine learning model, and as such, it has limitations. While it can generate persuasive responses based on patterns it has learned from large volumes of text data, it cannot understand the nuances of human emotion, context, or intent in the same way that a human being can.

This means that appellate lawyers who use ChatGPT for rhetorical purposes must be careful to ensure that the responses generated by the model are appropriate and effective for their intended audience. They should also be aware that the use of ChatGPT in legal writing is still a relatively new and evolving area, and that best practices are still being developed.

Overall, ChatGPT can be a valuable tool for appellate lawyers looking to enhance their rhetorical skills and produce high-quality legal content. By using the model in conjunction with their own expertise and insights, lawyers can create persuasive and compelling arguments that effectively convey their clients' positions.

Analyzing ChatGPT’s Response

Not a bad response, generally speaking. But what has ChatGPT revealed about itself?  Here’s a brief analysis of some things we can learn about ChatGPT from this response.

            ChatGPT Might Assume Too Much About the Reader

ChatGPT starts with a correct definition of rhetoric and then asserts that ChatGPT is an extension of rhetoric because it uses natural language processing (NLP). But ChatGPT assumes the reader knows what NLP is.  (And later it assumes that the reader knows what a “language processing model” is.)   If you don’t know (I didn’t) what NLP is, here’s a quick definition sourced from IBM:

NLP combines computational linguistics—rule-based modeling of human language—with statistical, machine learning, and deep learning models. Together, these technologies enable computers to process human language in the form of text or voice data and to ‘understand’ its full meaning, complete with the speaker or writer’s intent and sentiment.

So, one thing we learn about ChatGPT from this passage is that it can wrongly assume a reader’s knowledge, something lawyers know better than to do. While we might think that better engineering of ChatGPT’s prompt would solve the problem, recall that I told ChatGPT the audience for whom I was writing. That specific detail in the prompt did not seem to make a difference in ChatGPT understanding that many members of the intended audience would have limited knowledge of the computer science terms associated with ChatGPT. 

            ChatGPT Thinks of Itself as “Art”

I’m intrigued that ChatGPT chose the term “art” when describing itself as an “extension” of rhetoric.  This characterization seems counterintuitive because ChatGPT is the product of computer, data, and language science.  Yet, ChatGPT suggests that because NLP is a human-like effort to understand the meaning of language (as the definition above reflects), ChatGPT sees itself as an “artistic” endeavor, at least regarding persuasion.  And, at least in some cases, ChatGPT has proven that to be true--there’s something that feels like artistry in ChatGPT’s responses to prompts.  (See, e.g., this poem by ChatGPT and the debate around whether ChatGPT’s poetry is “art.”)

If ChatGPT sees itself as art rather than science, then we should take it at its word and think of it as we do art and artists.  That is, as do artists, ChatGPT brings a particular perspective to its responses.  As such, ChatGPT’s response is a form of art—and only one of many responses available.  Just like painters and sculptors can interpret their objects of study differently, ChatGPT’s interpretation of data in a particular response is one of many.  Thinking of this another way, we might view ChatGPT’s responses to prompts as opinions, subject to issues of perspective, interpretation, accuracy, bias, and incompleteness.

            ChatGPT Speaks Like It Wants to Sell You Something, but Should You Buy It?

Although I asked ChatGPT to describe a relationship between two things, ChatGPT’s response feels more like a sales pitch. It makes grand, authoritative-sounding claims about ChatGPT’s value to the user.  It is confident that it can help lawyers persuade and compel by providing “high-quality content in a wide range of styles and formats.”  ChatGPT reminds us that it has “key advantages,” that it can enhance the lawyer’s persuasive skill, and that it can generate high-quality content that can be tailored to client’s needs.

Why might ChatGPT sound so confident?  Maybe ChatGPT’s confidence comes from the way it generates responses.  ChatGPT generates responses by examining a vast amount of data, looking for the patterns and relationships between words in the sample, and then predicting what response is appropriate for the context.  Perhaps because I told it I was writing a blog post, the texts that ChatGPT accessed for context were blogs, and because many blogs are written in a tone designed to sell something, this caused ChatGPT to adopt the same tone by predicting that I was expecting that tone in the response.

Regardless of the reason, this extra-confident tone of the response should give us a reason to scrutinize ChatGPT’s claims more carefully.  If we read closely, we see that the response doesn’t really explains what “high-quality content” means.  On one hand, commentators point out that ChatGPT cannot tell the difference between true and false information and thus can deliver inaccurate responses.  This aspect of ChatGPT, then, is not “high-quality.”  Moreover, ChatGPT’s ability to sound very confident in its responses can lure readers into believing the responses’ truth.  For lawyers, this inaccurate information expressed in a confident tone is a malpractice minefield.  For example, one would not want to rely at face value on what ChatGPT says about some point of law.  (It’s probably useful to remind those in your office who could use ChatGPT of this important point.)

On the other hand, ChatGPT arguably can offer something of high(er) quality in that it can produce a “wide variety of styles and formats.”  You can prompt ChatGPT to write in a particular style—even your own!  You can request it write content in the style and organization of a brief or a motion, and it will comply.  You can ask it to assist in correcting your grammar.  It’s pretty good at offering examples of different genres, styles, and tones of writing.  This is because it is good at providing an approximation of whatever you’ve asked it to create based upon the patterns it recognizes in the dataset.

But here’s the catch, I think, with using ChatGPT to generate “style and format” content: the user must already understand the style and structure he or she seeks in order to evaluate the quality of ChatGPT’s response.  In other words, if you don’t know already what a case caption for, say, the United States Court of Appeals for the Ninth Circuit looks like, how can you be sure ChatGPT will give you the right format for that caption?  Likewise, if you aren’t sure what a good introduction to an appellate brief looks like, how can you know if ChatGPT has given you a good one in its response?   ChatGPT would be good at giving you examples, but it can’t really tell you which one is “best” in your circumstances.

            ChatGPT Knows Its Rhetorical Limits

Even though ChatGPT is confident in its capabilities, it admits that it has limits.  Specifically, ChatGPT responds that it cannot understand emotion, context, or intent like a human does when crafting responses to persuade. This is a pretty significant admission.  To be limited in these ways is relevant to ChatGPT’s persuasive abilities; understanding emotion, content, and intent are elements of human communication that are central to rhetorical effectiveness.  So, even though ChatGPT sees itself as an “extension” of rhetoric, it is a fairly limited extension.

 ChatGPT reminds us that one of its limitations is that it generates persuasion from finding patterns in large amounts of existing data.  So, that raises the problem of “garbage in,” “garbage out.”  In other words, the quality of ChatGPT’s responses is only as good as the data it can access.  That is, if the dataset has both helpful and unhelpful patterns that inform ChatGPT’s responses, how does one know if what ChatGPT generated is something worth relying on?  The only way to know is to already have the knowledge essential to evaluating the response.

            In the End, ChatGPT is Deferential about Its Writing

ChatGPT says it is the appellate lawyer’s job to ensure what ChatGPT writes is effective for the intended audience.  It talks about itself as a “model” that can help lawyers be persuasive and reminds lawyers that the model should be used in conjunction with lawyers’ expertise and insights.  In other words, ChatGPT does not take the position that it replaces humans in the writing process—particularly where audience analysis and professional expertise is involved.  Here, ChatGPT makes a significant rhetorical move—it reminds you that the technology is only as good as its user and, even after all of its confidence above, disclaims responsibility for the usefulness of its output. Fascinating.

Some Takeaways

ChatGPT notes that it is new enough that “best practices” for using ChatGPT in legal writing are still being developed. I take this as a challenge!  Based upon ChatGPT’s rhetoric (i.e., the way it uses language to talk about itself), I’ll propose some best practices for you:

• Do not be misled by ChatGPT’s confidence. ChatGPT sounds confident and authoritative in its responses, but users should be skeptical about the legitimacy of that confidence.
• Rely on your own expertise, not ChatGPT’s. Appellate lawyers (and staff working for them) need to have an existing knowledge base to evaluate ChatGPT’s responses.  In particular, evaluating the appropriateness of the response for an audience is essential.  As with all aspects of outsourcing judgment in legal practice, outsourcing judgment to ChatGPT is dangerous.  At the very least, for appellate lawyers to use ChatGPT effectively, they will need to become familiar with prompt engineering techniques that make ChatGPT more expert in the field and thus arguably improve ChatGPT’s responses.
• Treat ChatGPT as opinionated, not authoritative. Although ChatGPT is the product of science, ChatGPT should be seen as an artistic process, generating content that is more like opinion than unassailable fact.  Treat ChatGPT as conversation partner, muse, or collaborator than can help you “play” with ideas and text.  (Check out Ian Bogost’s article insightfully concluding that “ChatGPT  . . . doesn’t understand or even compose text. It offers a way to probe text, to play with text, to mold and shape an infinity of prose across a huge variety of domains . . . into structures in which further questions can be asked and, on occasion, answered.)
• Remember that ChatGPT relies on pattern recognition, a limited mode of persuasion. ChatGPT does not have all the rhetorical capabilities of humans but can recognize patterns in data that might have persuasive impact.  Even if that pattern recognition is persuasive, users must remember to look at persuasion from all aspects of the human experience, not just in the ways that ChatGPT looks at it.
• Remember that ChatGPT does not guarantee competent writing, you do. At bottom, ChatGPT does not claim it is superior to you in writing ability but rather it remains deferential to your experience and expertise. It disclaims its ability to effectively write for your “local” audience.  No one—not even a computer—knows your clients, your arguments, and your audience better than you do.  Rely on your own judgment about competent writing.

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Co-Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently working on a writing handbook written specifically for trial lawyers. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

Paragraphs and Pilcrows

This blog has featured paragraph-pertinent musings before. Today I hope to share a little about the petite pilcrow, offer some guidelines for proper paragraphing, and provide a tip for formatting with pilcrows in legal writing.

What is a pilcrow?

If you are an attorney, you have likely been using the pilcrow for years.  I certainly have, but until today I did not know its name (how impolite!).  The pilcrow is the paragraph symbol: ¶. 

I stumbled upon a fascinating article on the origin of the pilcrow.  According to the article, "pilcrow" evolved from the very fitting Greek word paragraphos for "write beside."  It iterated through French (paragraph) and Middle English (pylcrafte) to "pilcrow."

The symbol was originally written on a page to signal changes in topic or speaker, similar to its function today.  It started out looking like a K, then morphed into a C in a nod to "chapter" differentiation.  Ultimately scribes added a line to the C to distinguish the mark from the rest of the sentence, then the symbol stretched and straightened into the ¶ we know today. 

The symbols became quite ornamental, requiring extra time for decoration at the end of a written document, and when the scribes ran out of time to finish the decorating, they left out the pilcrows altogether.  That is why we generally use pilcrows in legal writing only to separate statutory paragraphs and cite complaint allegations, not at the beginning of our paragraphs.

What is a proper paragraph?

If a pilcrow developed to separate speakers and topics, how do we mimic their function in our prose?  Paragraphs should follow some basic guidelines in legal writing to make the document easiest to read and comprehend.

Contains an average of 150 words

As has been said, Bryan Garner recommends that paragraphs average about 150 words, and no more than 250 words.  Some writers recommend three to eight sentences.

These are good rules of thumb.  When your topic is complex or involves large or unfamiliar words, err on the side of fewer, shorter sentences in your paragraphs.  Capitalize on readers' ability to process small chunks of information at a time and provide them necessary breaks in the word flow.

Conveys a distinct thought

Besides length, you can decide to start a new paragraph when you begin writing a distinct thought.  While all thoughts in a brief should connect to the main idea and ultimately seek the same relief, slight variations in thoughts or angles of the argument should trigger new paragraphs.  Cramming too much into one paragraph contradicts the small chunk principle and makes the reading a slog.

Has a topic sentence

In the same vein, every paragraph should have a topic sentence.  The topic sentence signals what each paragraph is about and how it is different from the paragraphs before and after it.  As you edit your writing, use your topic sentences to cut extraneous material from the brief.  Legal writers should never aim to repeat themselves.  Judges are intelligent folks.  You need not say the same thing five different ways; once is sufficient.

Starts with a meaningful transition

Finally, while you need not repeat yourself when you have made your point, it is always beneficial to link distinct thoughts between paragraphs.  Legal readers are looking for connections between concepts and logical through lines in your argument.  Make those explicit.

How do I ensure my pilcrows never hang alone at the end of lines?

This is one of the easiest ways to clean up a brief before you even finish writing.  You can eliminate lonely pilcrows hanging at the edges of lines of text by adding a nonbreaking space (CTRL + Shift + S) after every pilcrow.  The nonbreaking space, which looks like a small open circle when you show formatting, holds the pilcrow and following number together (¶ 1).

You can even build in an automatic nonbreaking space every time you type a pilcrow using Word's AutoCorrect feature.

Step 1:

A.   Insert > Symbol > More Symbols > Special Characters > Paragraph > Insert // Or type ALT + 0182

B.    Insert > Symbol > More Symbols > Special Characters > Nonbreaking Space > Insert // Or type CTRL + Shift + S

Step 2: Copy those two characters (CTRL + C).

Step 3: File > Options > Proofing > AutoCorrect Options > Replace

Step 4: “Replace” box > Paste the two characters you copied (CTRL + P).

Step 5: Backspace over the nonbreaking space. Only one character should be in the box.

Step 6: “With” box > Paste the two characters again. Backspace over any additional space at the end.  Only two characters should be in the box.  One is your invisible nonbreaking space.

Step 7: OK

Presto!  Proper paragraphs and partnered pilcrows in perpetuity.

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

Implicit Bias Challenged, If Not Debunked

In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question.[1] Below is a summary of the flaws in implicit bias theory.

1.    The Implicit Association Test (IAT) is deeply flawed.

The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:

The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?[2]

Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times.[3] One commentator explains as follows:

The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.[4]

Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.”[5] To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.”[6] Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”[7]

2.    There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.

Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:

Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’[8]

Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”[9]

3.    There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit          biases.

Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?

These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:

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

Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.

 4.    Implicit bias training is ineffective.

Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:

[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.[11] 

Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."[12]

Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars.[13] Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.[14]

Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.[15]

Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.

 

[1] Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today

[2] See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.

[3] See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[4]  Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)

[5] German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).

[6] Id.

[7] Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.

[8] Id.

[9] Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/

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

[11] Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator

[12] See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American

[13] See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at:   U.S. law students to receive anti-bias training after ABA passes new rule | Reuters

[14] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:

It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.

[15] See Green and Hagiwara, supra note 12.

“Read Everything” Is Good Advice at Any Stage of a Case or a Lawyer’s Career

Happy 2023.  I hope the new year is going well for all of you.  As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled:  “Read Everything.”  My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again.  Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things.  You can read the order here:  Dec. 30 opinion.

First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.”  Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral.  In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois.  See Order at 3-20, 39-41.

Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.”  Order at 33.  As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed.  Order at 3-20, 39-41.

As examples of various misconduct, the court explained:  “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.”  Order at 3.  Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s  “abdication of her responsibilities as counsel.”  Order at 3-4. 

For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations.  See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order).  In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.”  Order at 9.  Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.”  Order at 10.  In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.”  Order at 10.

In the September 22 motions, Outley claimed:

Honorable Judge Feinerman[] did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.

But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’”  Order at 10. 

Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date.  Order at 11-12.  Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim[] that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.”  Order at 12. 

Perhaps this admitted failure to read led counsel to “repeatedly transgress[] the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a

motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24.  On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like:  “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.”  Order at 6.  The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read.  Order at 5-6, 24.

Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial.  Order at 3, 4-5.   In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.”  Order at 3.  The court concluded:  “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.”  Id.

As the court summarized:  “It would be a substantial understatement to say that things did not go smoothly.”  Order at 2.   Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court.  See Order at 5. 

The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email.  Cassens Weiss, supra.

Here’s to careful reading in 2023.

What Law Students Should Know About Law Practice

One of the criticisms of law schools is that they do not adequately prepare students for law practice.

In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills.[1] This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.

Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.

1.    Learning to work with other people – including those you don’t like – is critical to your success.

In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession.  They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.

And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.

2.    Confidence and humility are critical to developing strong relationships with your colleagues.

Confidence matters in the legal profession.

But humility matters too.

Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.

In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.

3.    Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.

Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.

Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person.  As stated above, nobody likes jerks.

4.    Excellent persuasive writing skills are essential.

If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills.  Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.

5.    Outstanding communication skills are critically important.

Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.

Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.

6.    Law practice is stressful and can be all-consuming.

The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.

But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity.  Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.

 

 

[1] See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)

How to Prepare Law Students for the Real World

The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.

1.    Use the Socratic Method.

Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.

The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.

Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.

Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.

2.    Expand the legal writing curriculum.

Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.

But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.

In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.

More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.

3.    Require students to enroll in at least two clinics.

Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.

Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.

For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).

4.    Require students to take multiple upper-level practical skills courses.

Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.

The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.

After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.

5.    Use “high-pressure” assignments.

The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”

For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.

6.    Focus on developing the intangibles, or soft skills.

A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.

For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.

Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.

7.    Focus on mindset development – and mental toughness.

In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.

But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.

Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.

8.    Have high standards.

It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.

9.    Teach students to respect diverse viewpoints.

Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.

For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.

After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.

***

Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.

Disagreement, Civility, and Respect

It’s certainly no secret that we live in very partisan and polarizing times.  But the reasons for such polarization border on the ridiculous.

Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration, or education. Additionally, the media, whether it be CNN, Fox News, or MSNBC, has devolved into little more than a partisan enterprise that vilifies anyone with whom it disagrees, and that eschews true intellectual debate (and common sense).  What’s more, the rhetoric of our politicians, both Republican and Democrat, has become so divisive, simplistic, and, quite frankly, dishonest, that any attempt to engage in reasonable discourse is futile. And the United States Supreme Court has contributed to the problem; the meaning of the Constitution seems to depend more on the composition of the Court rather than a reasonable interpretation of its text. In essence, the credibility of many public figures who once inspired trust has vanished as they have unapologetically exposed their personal and political biases.

These factors, among others, have compromised citizens’ confidence in our institutions, in the political and electoral process, and in the ability to disagree on issues of law and policy while maintaining civility and respect. And such factors, not Donald Trump or Joe Biden, is the true threat to a viable and sustainable democracy.

Why is this happening? Below are a few reasons – and suggestions to restore a minimal level of maturity and common sense to public discourse.

1.    The prevalence of groupthink

Groupthink is one of the biggest impediments to a meaningful exchange of truly diverse perspectives. In academia, for example, particularly at law schools, the faculty are overwhelmingly liberal. This is not to say that the views of these professors – or liberals generally – lack merit. It is to say, however, that when you surround yourself with and continually hire people who mostly think like you, opposing perspectives seem so foreign and ‘wrong’ that it precludes meaningful discourse and discourages people from offering diverse viewpoints. Anyone who is a law professor that admires Justice Antonin Scalia – and originalism – will certainly relate. And anyone who has been on the receiving end of students trying to shout you down because you are offering a perspective with which they disagree will likewise relate

2.    A lack of humility – and the failure to admit that you might be wrong

Not everything is about you.

If you’re so self-absorbed that you cannot see past yourself and empathize with others, you cannot form true human connections, make an impact on others’ lives, or make meaningful improvements in your own life. Sadly, inflated egos and narcissistic personalities are prevalent in society, and such people – and personalities – are incredibly toxic. These people almost always think that they are ‘right’ on every issue. They ignore inconvenient facts. They cherry-pick data and evidence to suit their narratives. They hurl insults at those with whom they disagree.  Put simply, they cannot fathom the possibility that maybe, just maybe, their views are inaccurate, incomplete, or incorrect. When a person thinks like that, reasonable discourse is impossible. And the truth is that no one is necessarily right about everything – or anything. It takes humility to listen more and talk less, and to realize that we all have much to learn about life and the law.

3.    Immaturity and weak mindsets

It’s amazing how many adults behave like children.

People have different experiences. They come from different backgrounds. They were raised in different environments. They have often suffered unique traumas and disadvantages. These and other experiences shape a person’s values and worldview which, while invariably different from others, are no less worthy of respect. In other words, not everyone thinks like you. And if you had grown up in their shoes, you probably wouldn’t think the way you do now.

So, grow up. The fact that others have different opinions does not make them wrong. It does not make them bad people. It does not make them immoral or invidious. It just makes them different.  And difference is the essence of diversity.

For example, if someone is pro-life, it doesn’t automatically mean that they have no respect for a woman’s bodily autonomy or liberty. If someone is pro-choice, it doesn’t mean that they sanction the killing of human life. It just means that they have different perspectives, which are informed by their personal experiences, including family upbringing and the overcoming of adversity. If someone voted for Donald Trump, it does not mean that the person is racist or unintelligent. It just means that they are different from you and those differences resulted substantially from, among other things, the environment in which they evolved. As stated above, if you grew up in their shoes, your opinions and worldview might be far different from the ones you have now.

If you take offense to or discriminate against those who have different opinions, then it is you who is the enemy of diversity.

4.    Hypersensitivity

Life is difficult. It is unfair. It is unjust. People can be terribly critical and judgmental, and they are often the ones who espouse the very virtues (e.g., tolerance and acceptance) that they lack.  But not every criticism is undeserved, and not every experience of unfairness or injustice is unbearable.

Successful people have strong mindsets. They have a positive thought process. They are mentally tough. They know how to respond to adversity. They realize that your choices, not your circumstances, determine your destiny. They don’t make excuses. They focus on what they can control, and they do not get distracted by external ‘noise.’ In short, they have thick skin while simultaneously treating others with kindness and empathy.

5.    The inability to listen and the unwillingness to learn

So many people just cannot shut up.

These folks often cringe or come quite close to a nervous breakdown when they confront opinions, facts, or evidence that undermine their subjective policy predilections or expose their personal biases. The inability to listen, however, only ensures the impossibility of engaging in respectful and meaningful discourse. Having listening skills is critical to building successful professional and personal relationships, and to creating an environment of mutual respect.

So, start listening more. You might learn something.

6.    Vilifying people personally because you disagree with them politically

It’s shocking how people resort frequently to personal attacks to demean and degrade those with whom they disagree. And it’s alarming how many people embrace simplistic narratives and dichotomies such as ‘good’ or ‘bad’ or ‘right’ or ‘wrong.’ Reality is far more complex and often resides in a gray area where no one can claim a monopoly on truth. If you have even the semblance of self-awareness, a modicum of maturity, and an ounce of humility, you know that attacking someone personally based on differences in opinion reflects insensitivity and intellectual dishonesty.

For example, people who supported Justice Brett Kavanaugh’s nomination are not necessarily vile sexists. People who supported Donald Trump are not necessarily ignorant racists. People who support Alexandria Ocasio-Cortez are not necessarily socialists. Likewise, people who support affirmative action do not necessarily believe in ‘reverse discrimination,’ and people who oppose affirmative action are not necessarily racist or privileged. They are just people who think differently than you. They are no better – and no worse.

In the end, our similarities and shared values far outweigh our differences, and the failure to embrace those similarities and respect those differences is corrosive to any society that values liberty and equality.

So, the next time you’re in a faculty meeting, a board meeting, a debate at a bar, or a discussion in a classroom, be open to new perspectives. Choose to truly embrace diversity.

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

In Praise of the Second Edition of The Indigo Book: A Manual of Legal Citation

Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook.  On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales.  See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.

As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook.  Additional states have their own gloss on key Bluebook rules or allow use of other manuals.  Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court. 

Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition.  The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition.  See generally Wendy S. Loquasto, Legal Citation:  Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017). 

Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook:  https://indigobook.github.io/versions/indigobook-2.0.html.   Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource.  In sharing the second edition, Prof. Romig explained:  “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.”  The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes.  Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.” 

The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias.  Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.”  In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.  

Tips for Writing a Persuasive Reply Brief

Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.

1.    Begin with a concise and powerful introduction.

Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.

After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.

2.    Focus on what your adversary did not say.

Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.

3.    Respond to some of your adversary’s arguments.

The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments.  If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.

Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.

4.    Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.

The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.

Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.

5.    Write your reply brief with the expectation that it may be the first document that the judge reads in your case.

Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues.  This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.

6.    Maintain consistency with your initial brief.

Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.

7.    Keep it short and re-enforce your theme.

Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.

8.    End strong.

A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.

 

 

Characteristics of the Best Appellate Advocates

The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.

1.    They are highly intelligent and analytical.

The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.

2.    They have the intangibles.

The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.

3.    They are objective in assessing the merits of an appeal.

The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.

4.    They know how to select issues for an appeal.

The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.

5.    They are exceptional writers.

The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.

6.    They are outstanding oral advocates.

The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.

7.    They are extremely thorough and methodical.

The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.

8.    They are confident.

The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.

9.    They win.

As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.