Appellate Advocacy Blog

Using ChatGPT as an Editor in Three Easy Steps

ChatGPT is great for all kinds of tasks, including editing and revising your writing.  It has endless patience and works on your schedule.  Want to write more like Justice Roberts or Justice Kagan?  It can help you do that.  Need help finding the right turn of phrase?  It can help you do that.  Need to change the tone of your prose to be more assertive?  It can do that, too.

And you don’t need a degree in computer science to do it.

In just three steps, you can turn ChatGPT into a fantastic editor.[i]  Those steps are (1) train it, (2) prompt it, (3) evaluate the output.

Step 1: Train the AI

Training ChatGPT sounds intimidating, especially for those of us who still struggle to order a pizza online, but it’s really just simplified teaching.  Imagine you want your writing to sound more like the late Justice Antonin Scalia’s work.  Before ChatGPT can help you, you have to teach ChatGPT what makes Justice Scalia’s writing unique.  To do that, you could describe his use of various rhetorical devices, wit, and tone. Or you could simply upload some of your favorite examples of his work to ChatGPT.[ii]

Step 2: Prompt the AI

Once you’ve given ChatGPT an idea of what you are looking for, you’ll need to tell it how you want it to assist you.  In your prompt, tell ChatGPT that you want your writing to sound more like the examples; then upload something of your own, ask it to compare your work with the examples, identify distinctions, and suggest changes.  You can ask for this output in whatever form suits you—a chart, a table, a list, etc.

Step 3: Evaluate the Output

In the final step, evaluate ChatGPT’s suggestions to see if they accomplish your stated goal.  If so, great!  If not, tweak your prompt to give ChatGPT more guidance or provide it additional examples to work from.  Using ChatGPT as an editing assistant is an iterative process; the more information you give it, the better output it creates, and the more useful it becomes.  And it will continue working as long as you want and making as many changes as you need, all without complaint.

It can also help by performing smaller tasks.  For example, I recently used ChatGPT to help my students identify passive voice in their own writing.  While their initial thought was to simply ask ChatGPT to analyze a passage and correct the passive voice, that approach does not yield great results. It frequently misidentifies other writing errors as passive voice and fails to identify actual instances of passive voice.  It is much more effective when you give it the same advice I give my students:  identify the verb and insert the phrase “by zombies” after it; if the sentence still makes sense, it’s probably passive voice. 

To try this yourself, first upload a passage of writing and tell ChatGPT to identify and italicize all verbs.  (When I first did this, I checked ChatGPT’s work to see if what it identified were, in fact, verbs.  It was correct about 99% of the time.)  Then, ask it to insert [by zombies] immediately after every verb.  It produces a product where you can easily read each sentence with the phrase “by zombies” after the verbs and more readily identify where passive voice is present.

The ways in which ChatGPT can be used as an editor are limited by only your own imagination.  And though you may have to teach it how you want something done, once you do, it becomes an invaluable and indefatigable assistant.

 

[i] Though I refer to ChatGPT here, this process is equally applicable to other generative AI platforms.

[ii] If you are not sure what makes Justice Scalia’s writing unique, you could also ask ChatGPT what the various examples have in common.  You could then use its answer in conjunction with the examples to help ChatGPT understand what you are looking for.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

Great Attorneys Have The Intangibles

As a professor and pre-law advisor, countless students express a passion for and commitment to a legal career every semester. In so doing, they always ask the same question: what skills are needed to be a great lawyer? Intelligence, critical thinking, research, and writing skills are essential. However, the intangible skills truly separate a mediocre lawyer from an elite lawyer. And although students certainly need to improve their critical thinking, research, and writing skills, they also need to develop intangible skills. Below is a list of some of the most important intangible skills.

1.    Emotional intelligence and common sense.

Emotional intelligence may matter more than raw intelligence. This refers to a person’s ability to manage their emotions and cope well during times of stress, pressure, and adversity. Emotionally intelligent people are self-aware, thrive under difficult circumstances, empathize with others, overcome challenges, and address interpersonal conflict effectively. Lawyers who lack emotional intelligence and the ability to self-regulate are at high risk for developing depression or struggling with substance abuse – a fact that is well-documented in the legal profession.

Common sense refers to the ability to perceive personal and professional situations accurately to enable you to exercise good judgment and make correct decisions in response to those situations. If you lack common sense, your judgment and ability to navigate complex and difficult situations will be affected.

Simply put, it is not sufficient to have an IQ of 130 or an LSAT score of 170. You have to be “street smart” and have the emotional maturity to deal with and thrive under the adversity that a life in the legal profession engenders.

2.    Hard work, resilience, and perseverance.

Many students lack a true understanding of what it means to work hard, prepare, and persist under difficult circumstances and unexpected challenges. Sometimes, particularly in the legal profession, you have to work day and night – for months and even years – litigating a complex case or preparing for a trial or appellate oral argument. You will be exhausted and struggle to operate at a high level. In these circumstances, elite lawyers persevere, remain resilient, and maintain focus and discipline. Put simply, hard work does not mean working until you get a task right. It means working until you cannot get it wrong. And great lawyers work harder and prepare more than anyone, thus ensuring that they can produce a peerless work product.

Ultimately, although most people can excel when circumstances are ideal, far fewer can excel when life gets difficult, such as when experiencing, for example, the breakup of a marriage, coping with the death of a family member, or struggling with anxiety or depression. Great lawyers can compartmentalize and excel despite these challenges.

3.    Creativity.

Great lawyers think outside of the box. They do not simply make arguments in a formulaic and predictable manner or based solely on precedent. Rather, in appropriate cases, they develop creative and original arguments, present them persuasively, and move the law forward.  For example, in Griswold v. Connecticut and Roe v. Wade, who would have thought that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property…without due process of law” would include an implicit right to privacy and a right to terminate a pregnancy? Great lawyers made those arguments and the United States Supreme Court agreed that this unenumerated substantive right was encompassed within the “liberty” protected by the Fourteenth Amendment. Additionally, in National Federation of Independent Investors v. Sebelius, who would have thought that the Affordable Care Act’s individual mandate could be interpreted as a tax, as Chief Justice Roberts held, rather than a penalty? Again, great lawyers made those arguments because they were creative and thought outside of the box.

4.    Judgment and strategic thinking.

Elite lawyers exercise great judgment and think strategically to achieve the best result possible for their clients. Good judgment and strategic thinking require the ability to, among other things, make the right decisions based on incomplete facts and data, anticipate an opponent’s arguments, predict what questions a court will ask at oral argument, know what questions to ask during a deposition, and understand how to negotiate a settlement. Good judgment and strategic thinking are a product of common sense, experience, and instinct; lawyers lacking these skills will struggle to achieve positive outcomes for their clients.

5.    Communicate effectively – and listen meaningfully.

Excellent lawyers know how to communicate – and how to listen. Excellent communication skills involve, for example, knowing how to simplify and make understandable complex facts and legal issues, adapting your communication strategy based on the audience to whom you are speaking, providing unfavorable opinions to a client in an empathetic manner, and choosing words that maximize persuasion and credibility.

Great communicators are also great listeners. They know that listening actively enables you to accept feedback constructively, benefit from different perspectives that challenge your opinions, foster strong relationships, facilitate better decision-making, and avoid unnecessary conflicts.

6.    Confidence and humility.

If you want to be a great lawyer, you must have confidence. That means believing in yourself and your ability, and not being intimidated by your adversary or the court. It means trusting in your preparation and having pride in your performance, knowing that if you prepare well, you will excel consistently. If you lack confidence, the court, the adversary, and your client will perceive it immediately and it will undermine the persuasiveness and credibility of your arguments.

Having healthy confidence, however, does not mean being an arrogant, narcissistic jerk. These people, who think that they can do no wrong, and who get offended whenever someone offers constructive feedback or disagrees with their views, are insufferable and never grow as lawyers or people. The best lawyers are confident and humble. They know that they are not right all the time or have the answers to every question. Instead, they listen. They learn. They grow. And they understand that success is so often due to other people who have helped and supported you along the way.

7.    Discipline, focus, and time management.

The best lawyers do not focus on external factors, such as opinions, perceptions, or expectations. Instead, they focus on what they can control and maintain discipline under exceedingly difficult circumstances. They do not get discouraged by a negative ruling, a poor performance, or a challenging workload. They do not get distracted by professional or personal conflicts.

Great lawyers also know how to manage their time. They work efficiently and budget their time to ensure that they can perform consistently at a high level. They do not waste time on needless conversations or meetings, or on tasks that could be delegated to someone else. By doing so, they improve their performance and likelihood of success.

8.    Teamwork.

Excellent lawyers know how to work as part of a team and maximize the contributions of all team members. They know how to lead and how to motivate and inspire a team. They listen to feedback. They delegate. They cooperate. They are humble. They value every member of the team. They offer support, encouragement, and constructive criticism. They understand the strengths and weaknesses of every team member and develop a plan to maximize those strengths. If a lawyer cannot work on a team and effectively navigate group dynamics, it will affect the quality of that lawyer’s representation and the likelihood of achieving success in a given case.  

***

Many law schools do not emphasize the development of intangible skills, in part because they are so difficult to teach. However, for aspiring lawyers, the knowledge that intangible skills are critical to success enables them to focus individually and collectively on developing these skills in their professional and personal lives.

Reminder: Keep a Sharp Eye on the Invisible

Our world is filled with data of all kinds, including metadata (“data that provides information about other data”).[i]  Metadata exists in numerous places.  For example, “a digital image may include metadata that describes the size of the image, its color depth, resolution, when it was created, the shutter speed, and other data.”[ii]   Attorneys should be especially interested in the metadata contained within a text document.  “A text document’s metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.”[iii]  It can also contain information about the number of versions, how long it took to draft, and ways in which it was modified.[iv]

As you can imagine, this can be problematic for a profession that drafts and redrafts highly consequential documents, strategically considering the effect of each word and phrase.  Though there was much talk about metadata in the early 2000s, it seems that lawyers are still failing to heed the warnings.[v]  Lawyers for Sean “Diddy” Combs recently made headlines for failing to remove some track changes language from a court filing, revealing that one reviewer questioned the legitimacy of an assertion before the document reached the court.[vi]

Even the United States Supreme Court is not immune from this kind of mistake.  Earlier this year, when handing down its decision in Trump v. Anderson, the Court failed to scrub some metadata, revealing that what appeared to be a concurring opinion coauthored by three justices was, at one point, an opinion both concurring in part and dissenting in part, drafted by Justice Sotomayor alone.[vii]

It's easy to overlook metadata in our documents because, generally, we don’t see it without taking certain steps to reveal it.  And, without knowing how it is created and stored, we may not realize exactly how easy it is to find and view.  For example, while drafting this post in Word, I did not use track changes, but when I clicked on “version history,” my document appeared as if I had.  I could see every addition, alteration, and deletion from the last auto-saved version—not a big deal for a blog post, but potentially catastrophic for a demand letter, settlement offer, motion, appellate brief, or judicial opinion.

There are several places on the web you can go to find information about how to scrub metadata from your document.[viii]  And you should.

But what if you receive a document with metadata still intact?  There have been many ethics opinions on the issue over the years, but there are still some open questions.[ix]  As one author suggested, “[t]he best rule is for law firms to develop best practices internally to keep metadata from ‘escaping’ in the first place.”[x] 

 

[i] “Metadata.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/metadata (last accessed Oct. 6, 2024).

[ii] “Metadata.” Wikipedia.com, https://en.wikipedia.org/wiki/Metadata (last accessed Oct. 6, 2024).

[iii] Id.

[iv] Marilyn Cavicchia, How Clean is Your Document? What You Need to Know About Metadata, American Bar Association, Bar Leader (Vol. 32, No. 3, Jan.-Feb. 2008), available at:  https://www.americanbar.org/groups/bar-leadership/publications/bar_leader/2007_08/3203/metadata/#:~:text=Where%20is%20metadata?,belonging%20to%20a%20U.S.%20contractor (last accessed Oct. 6, 2024).

[v] Catherine Reach, Exposed! What Lawyers Need to Know About Metadata, North Carolina Bar Association (Jan. 4, 2022), available at: https://www.ncbar.org/2022/01/04/exposed-what-lawyers-need-to-know-about-metadata/ (last accessed Oct. 6, 2024).

[vi] Staci Zaretsky, Lawyers for Sean 'Diddy' Combs Make Embarrassing Mistake in Bail Letter to Judge (Sept. 18, 2024), Above the Law, available at: https://abovethelaw.com/2024/09/lawyers-for-sean-diddy-combs-make-embarrassing-mistake-in-bail-letter-to-judge/ (last accessed Oct. 6, 2024).

[vii] Mark Joseph Stern, Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling, Slate.com (Mar. 4, 2024), available at:  https://slate.com/news-and-politics/2024/03/supreme-court-metadata-sotomayor-trump-dissent.html (last accessed Oct. 6, 2024).

[viii] See, e.g., https://ncculaw.libguides.nccu.edu/Technology/metadata, https://support.microsoft.com/en-us/office/remove-hidden-data-and-personal-information-by-inspecting-documents-presentations-or-workbooks-356b7b5d-77af-44fe-a07f-9aa4d085966f, or https://www.adobe.com/acrobat/hub/remove-metadata-pdf.html.

[ix] In Comment [2] to Rule 4.4(b) (“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender”), the ABA notes, “Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.”  https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_4_respect_for_rights_of_third_persons/comment_on_rule_4_4/.

[x] Jim Calloway, Metadata – What Is It and What Are My Ethical Duties? LLRX.com (Jan. 5, 2009), available at:  https://www.llrx.com/2009/01/metadata-what-is-it-and-what-are-my-ethical-duties/#:~:text=Without%20authorization%20from%20a%20court,to%20have%20been%20intentionally%20communicated (last accessed Oct. 6, 2024).

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

It's not just Generative AI, it's Stenographers too

Instances of lawyers’ use (or rather misuse) of generative artificial intelligence tools such as Chat-GPT, have resulted in sanctions for violating rules of professional conduct or court rules. These cases generate much publicity—and no doubt embarrassment—for the lawyers involved. But there is nothing new under the sun (or in the practice of law). These cases simply represent recent and high-profile examples of lawyers being sanctioned or castigated for the way that they used the latest technology in their written advocacy.

In a 1902 case, a court noted that the latest technological advances had contributed to the lawyer’s violation of a court rule governing the contents of an appellate brief.[1] There, the court’s rule required each party to “‘briefly state upon his printed points, in a separate form, the leading facts which he deems established, with a reference to the folios where the evidence of such facts may be found.’”[2] The appellant violated the court’s rule by filing a brief that covered 117 printed pages and included lengthy quotations.[3] Lamenting the lawyer’s failure to comply with the court’s rule, the court said,

When every lawyer wrote his points with a pen, there was no occasion for complaint in this regard; but, since the use of stenographers has become general, the evil has grown until it is so serious that repression is necessary. We feel assured that these suggestions will be sufficient, and that we shall not be compelled to make a hard and fast rule upon the subject, and to provide for its violation by an appropriate penalty. We have been led to make these observations, not simply by this case, but by many, of which this is an example.[4]

 

[1] Stevens v. O'Neill, 169 N.Y. 375 (1902).

[2] Id. at 376.

[3] Id. at 376-77.

[4] Id. at 377.

A Primer on Ninth Circuit Binding Dicta: Judge Forrest’s Stein v. Kaiser Concurrence

Early in law school, you probably learned that dicta is non-binding.  Later, you also probably realized that application of this dicta rule, like so many other rules, depends.  For example, our 1L persuasive writing assignment last semester included a case discussing when Supreme Court dicta can be controlling.  Moreover, the Ninth Circuit has sometimes employed a “binding dicta” rule.

This week, Ninth Circuit Judge Danielle Jo Forrest detailed the history of the Ninth Circuit’s “dicta-is-binding rule,” which she called “burdensome and misguided.”  Stein v. Kaiser Fdn. Health Plan, Inc., __ F.4th __, 2024 WL 4271950, slip op. at 9 (9th Cir. 2024)(en banc)(Forrest, J., concurring).  In an opinion tracing the use of dicta from Sir Frances Bacon to today, Judge Forrest, joined by Judge Bumatay, asked the Ninth Circuit to join every other circuit in not using dicta as binding precedent. 

Judge Forrest explained a rule demanding courts follow some dicta “lacks legal foundation,” “causes unnecessary inefficiency,” “wastes resources,” and “is contrary to the common-law tradition of judging, the jurisprudence of the Supreme Court and every other circuit court in the nation, and the Constitution.”  Stein, Slip op. at 9.  According to the concurrence, the Ninth Circuit “stand[s] out like a flamingo in a flock of finches in treating dicta as binding.”  Id. at 16. 

Judge Forrest noted the Ninth Circuit initially took this “flamingo” approach to dicta without briefing or full discussion, stating:  “Irony upon irony, th[e] pronouncement about dicta was, itself, dictum,” as it came in an en banc case concurrence joined by only four total judges.  Id. at 16-17.  Moreover, she explained the authority “cited [in the dicta-rule-creating concurrence] do not support the dicta-is-binding rule.”  Id. at 17-18.  Thus, “the dicta-is-binding rule did not have the numbers to be real law,” yet “it quickly begat progeny.”  Id. at 18. 

Moreover, even if there had been a justification for a binding dicta rule, perhaps “because [the Ninth Circuit] thought the expansion of judicial decision-making authority would be limited” by the rule, in practice “it has not turned out that way.”  Id. at 18-19.  The history and application of the Ninth Circuit’s rule left Judge Forrest to “wonder:  if all the other federal appellate courts can figure out what is and isn’t dicta without destabilizing their law, why can’t we?”  Id. at 19.

As appellate lawyer Cory Webster wisely notes, Judge Forrest’s Stein concurrence could be required reading in a course on the law of judicial precedent.  Cory Webster, LinkedIn, https://www.linkedin.com/feed/update/urn:li:activity:7245432020770693122/.  The opinion is also a very interesting read on dicta, and on persuasive opinion writing.  I will definitely be making the opinion required reading for my class, and I hope you enjoy reading it too.

How is the presidential race like “a knife fight in a phone booth”?

On September 2, 2024, when describing the stakes of this evening’s presidential debate between Vice President Kamala Harris and former president Donald Trump, Steven Shepard of Politico labeled the race “the equivalent of a knife fight in a phone booth.”[i] 

I’m a big fan of the power of metaphor and analogy in persuasive writing, given their abilities to both readily convey complex information in simpler terms and improve concision.  But this particular comparison doesn’t work for me.  The characteristics of a knife fight in a phone booth are (1) two people in a very small space, (2) mortal danger, and (3) a short duration.  Harris and Trump are not, by any stretch of the imagination, in a confined space together.  While they are competing for the office of president, they are not seeking to physically harm or kill one another in doing so.  And while the timeline for this particular match-up is brief in comparison to prior presidential races given Harris’s late entry, it has still been (and will be) a monthslong endeavor.  So how, exactly, is it like a knife fight in a phone booth?

This is not the first time this metaphor has been used in reference to politics.  It is frequently used to describe the political landscape in San Francisco.[ii]  And it was used by Senator Mitch McConnell to describe congressional races in 2016.[iii]

But this phrase has also been used to describe combat in the Iraq War,[iv] dealing with turbulence when learning to fly an airplane,[v] the speed of a bicycle,[vi] competitive strategy in athletics,[vii] competition for real estate,[viii] the setup and play of various board games,[ix] and paralympic wheelchair fencing.[x]

“Knife Fight in a Phone Booth” is also the title of multiple songs by various artists,[xi] a watercolor painting,[xii] an actual board game,[xiii] and even an IPA craft beer (which was also sold in a pineapple version).[xiv]

It is hard to see a common thread.  I suspect the original meaning had more to do with speed than competition.  According to one website, the full phrase comes from the country expression, “faster than a knife fight in a phone booth.”[xv]  This makes a lot of sense; it’s not difficult to imagine that a knife fight in a phone booth would be over quickly.  But that doesn’t really apply to presidential races, which can feel rather long to the average American.

Another variation of the phrase is used to describe a boxing style—“fighting in a phone booth,” where the boxers stay huddled together without using the entire ring.[xvi]  (This version of the phrase has become an actual Russian sport where two people literally box each other inside the confines of a phone booth.)[xvii]  This knifeless version could figuratively apply to the current presidential race, where the real fight seems confined to a handful of swing states, rather than the country as a whole.  But then why the addition of knives?

I suspect the most likely explanation is that the evolution of language has simply morphed this metaphor into one of limited utility.  It makes sense when describing certain board games characterized by “slim mechanics,” “[p]unishing to even minor mistakes,” “[c]laustrophobic,” and “[o]ver in a flash.”[xviii] And it is an apt comparison to paralympic wheelchair fencing, where the competitors’ wheelchairs are locked on a fixed track so that the competitors’ blades are always within striking distance of one another, taking the footwork element out of the sport.[xix] But I struggle to see the connection to a political race.

Analogies and metaphors work by employing three cognitive science processes:  (1) retrieval (finding something known), (2) mapping (identifying similarities between the known and unknown), and (3) transfer (using knowledge about the known to learn or infer something about the unknown).[xx]  Therefore, analogies work best when they (1) compare the current situation with another situation that is familiar, (2) have some emotional resonance, and (3) are free of unintended associations.[xxi]  And maybe this is where the knife-fight-in-a-phone-booth metaphor breaks down for me.  Knife fights of any kind carry no emotional resonance, and using the phrase in reference to politics seems to encourage political violence, which, for most Americans, is a negative association.  And, if I’m being honest, the visual image of Harris and Trump in a literal knife fight in a phone booth is absurd and fails to convey what I believe was the intended meaning—that Harris and Trump are locked in a high-stakes competition with exceptionally close odds for both candidates. 

The moral of this story is this:  analogies and metaphors are excellent communication tools when used well, but they can be off-putting when used incorrectly or when they contain unintended associations.

 

[i] Steven Shepard, Where the race between Trump and Harris stands on Labor Day, according to our polling expert, Politico (Sept. 2, 2024), available at: https://www.politico.com/news/2024/09/02/trump-harris-polls-2024-00176981 (last accessed Sept. 8, 2024).

[ii] See, e.g., Clara Jeffery, Dianne Feinstein and the Knife Fight in the Phone Booth, Mother Jones (Sept. 29, 2023), available at: https://www.motherjones.com/politics/2023/09/dianne-feinstein-dan-white-harvey-milk/ (last accessed Sept. 8, 2024); Jacob Ganz, A Knife Fight in a Phone Booth: The Saga of the San Francisco Mayor's Race, Davis Political Review (June 1, 2018), available at: https://www.davispoliticalreview.com/article/2018/06/01/a-knife-fight-in-a-phone-booth-the-saga-of-the-san-francisco-mayors-race (last accessed Sept. 8, 2024).

[iii] See https://www.c-span.org/video/?c4622795/sen-mcconnell-senate-races-knife-fight-phone-booth (last accessed Sept. 8, 2024).

[iv] Eric Boehler, Knife fight in a phone booth, Salon (Mar. 29, 2003), available at: https://www.salon.com/2003/03/29/baghdad_7/ (last accessed Sept. 8, 2024); Elliott Ackerman, A Knife Fight in a Phone Booth, The Atlantic (Nov. 7, 2023), available at: https://www.theatlantic.com/ideas/archive/2023/11/al-qaeda-fallujah-hamas-gaza-parallels/675912/ (last accessed Sept. 8, 2024).

[v] Knife Fight in a Phone Booth, Southern California Soaring Academy blog, available at: https://soaringacademy.org/news/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[vi] Bull Moose Bicycles, Facebook (July 16, 2024), available at: https://www.facebook.com/story.php/?story_fbid=1069208224593423&id=100045127670672&_rdr (last accessed Sept. 8, 2024).

[vii] Jonathan Byrd, It’s a Knife Fight in a Phone Booth, 10/20/Life Blog, available at: https://www.powerrackstrength.com/its-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[viii] Marc Stiles, Builder says competition for Seattle-area homesites feels 'like a knife fight in a phone booth', Biz Journals (May 17, 2024), available at: https://www.bizjournals.com/seattle/news/2024/05/17/homesite-competition-akin-knife-fight-phone-booth.html (last accessed Sept. 8, 2024).

[ix] https://boardgamegeek.com/geeklist/192508/a-knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[x] @paralympics, TikTok (Sept. 1, 2024), available at: https://www.tiktok.com/@paralympics/video/7409618665819147552 (last accessed Sept. 8, 2024).

[xi] See, e.g., “Knife Fight in a Phone Booth” by Glassmouth, “a chaotic hardcore/mathcore band from the depths of metropolitan Singapore” (https://www.glassmouthband.com/); “Knife Fight in a Phone Booth” by Bleed the Sky, “a metalcore band that originally formed in 2002 in Orange County, California” (https://genius.com/Bleed-the-sky-knife-fight-in-a-phone-booth-lyrics); and “Knife Fight in a Phone Booth” by Knockout Kid, “an American pop punk band from Chicago, Illinois” (https://en.wikipedia.org/wiki/Knockout_Kid).

[xii] “Knife Fight in a Phone Booth” by South African artist Victoria Verbaan, available at: https://victoriaverbaan.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).  This watercolor image depicts a woman facing up to a sky full of fighter jets.

[xiii] “Knife Fight in a Phone Booth” by Long Games, available at: https://www.pnparcade.com/products/knife-fight-in-a-phone-booth (last accessed Sept. 8, 2024).

[xiv] Knife Fight in a Phone Booth by Tattered Flag Brewery, Middletown, PA (https://untappd.com/b/tattered-flag-brewery-knife-fight-in-a-phone-booth/2502698).  Incidentally, the image represented on this beer was a hops flower flying a fighter jet engaged in aerial combat.  This craft brewery closed permanently on October 1, 2023.

[xv] https://www.just-one-liners.com/faster-than-a-knife-fight-in-a-phone-booth/ (last accessed Sept. 8, 2024).

[xvi] See, e.g., What do they mean when they say two boxers were fighting in a phone booth?, Quora, available at: https://www.quora.com/What-do-they-mean-when-they-say-two-boxers-were-fighting-in-a-phone-booth (last accessed Sept. 8, 2024).

[xvii] https://sidekickboxing.co.uk/what-is-phone-booth-boxing/

[xviii] See boardgamegeek.com, supra note ix.

[xix] See @paralympics, supra note x.

[xx] Jacob M. Carpenter, Persuading with Precedent: Understanding and Improving Analogies in Legal Argument, 44 Cap. U.L. Rev. 461, 465-66 (2016).

[xxi] Bruce Ching, Argument, Analogy, and Audience: Using Persuasive Comparisons While Avoiding Unintended Effects, 7 J. Ass'n Legal Writing Directors 311, 312 (2010).

Credibility as the Coin of the Realm in Appellate Advocacy

Credibility with the Court provides one of the key parts of an appellate presentation, whether written or oral. An advocate who fudges the controlling law or precedent or misrepresents it cannot expect the judges to credit other aspects of the argument. Misrepresentations about the record or the caselaw can effectively sink the most unfailingly accurate presentation of all other issues. Misstating something material to the case can plant a seed that grows into doubt about your honesty, your understanding of the law, and the thoroughness of your research.

Persuasive argument requires credibility. Spinning the facts or law in your client’s favor may require emphasis on particular facts or precedents while labeling the more problematic ones “unavailing,” but that does not authorize you to claim support from record evidence or judicial decisions that do not bolster your case.

When incredulous arguments appear in a brief, the responsive brief will usually point those out. If those arguments materialize in reply, it may occasion a sur-reply to inform the court of the filings departure from fair argument. Or it may provide an opponent with a devastating statement at oral argument from which there is no recovery.

In one case I had, my opponent made a false statement about the record in his opening brief. In my response, I dropped a footnote to rebut it, showing that nothing approximating what he argued was in the record, citing to the part of the joint appendix that would have, but did not, contain the “concession” he claimed. When we got to oral argument, I was shocked to hear my opponent make the claim anew without any acknowledgement of what I had said in my brief. As I began to jot down a note to remember to rebut the statement, Justice Ginsburg interrupted my opponent’s argument to make the point for me. He had no response. After that, what had been a smooth and very professional argument up until that time became disjointed and immeasurably weakened by his misstep. When I stood at the podium, I did not have to say anything about it because a justice’s efforts had done everything I had hoped to accomplish. The result confirmed that impression.

In their book on legal advocacy, Justice Scalia and Bryan Garner emphasize that oral argument requires an advocate to show the court “you are trustworthy, open, and forthright.”[*] If, in posing a question unanticipated in the briefing, you build an answer on a faulty structure that becomes apparent to the Court, either during oral argument or while an opinion is crafted, you will have snatched defeat from the jaws of a possible victory.

 

[*] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 141 (1998).

Citation Overload: Write Smart, Cite Smarter

Citations matter. Love them or hate them: Legal readers want them and, to be fair, they need them. After all, citations are how readers verify what you tell them about the law. But citations are also one of the easiest ways to clutter your writing. So choose your cites with care and make it clear how each supports what you say.

To see why your citation style matters, look at this snippet of legal writing, drowned by cites:

"Defendants contend that the exclusion of evidence relating to the plaintiff's prior legal actions is appropriate pursuant to Rule of Evidence 403, quoting with approval a series of cases that address the question of prejudicial impact versus probative value, including Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002); Collins v. Kibort,274 F.3d 377, 385 (7th Cir.2001); and Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1297 (10th Cir.1988). Further complicating matters, the plaintiff cites to an entirely different set of authorities to counter defendants' argument and to present an antithetical view of the standard for probative value, including Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008); Huddleston v. United States, 485 U.S. 681, 688-89 (1988); and L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 89-90 (2d Cir.1998). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Did readers need all these citations? Likely not. Here’s a rewrite without the legalese: 

"Defendants argue for the exclusion of evidence, citing Rule 403 and cases like Mercer v. City of Cedar Rapids, 308 F.3d 840, 845 (8th Cir. 2002). The plaintiff, conversely, offers cases like Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008). This Court's role is now to untangle the threads of these cases and form a coherent rule to apply here."

Citations are double-edged. Use them well, and they help. Lean on them too heavily, and your writing loses its voice.

Most importantly, if you cite authority, you should either quote the source or directly paraphrase it. But lawyers constantly drop citations on readers without explaining how those citations support their points. Talk about a credibility killer. If your readers need to go look up a case to figure out how it supports the sentence you’re writing, you’ve likely lost them.

Often the cite’s relationship to your sentence is already clear. As you set up the prep for your rule, you might share general principles that require a quick cite and nothing more. “Plaintiff has the burden here. [cite]” might be an example. But that would still be true only if the case said that in so many words—no inference needed.

In any event, when you start explaining your rule, especially an important one, don’t rely on empty citations. Do the inferential reasoning for your reader and put it on display. Link what matters from the source to your points so obviously that even the busiest readers can’t miss it. 🔗

Say you write this:

"Defendants need not touch the plaintiff’s skin to carry out a battery— touching something laying on the plaintiff’s body is enough. Park v. Hoffman, 324 F.3d 42, 44 (9th Cir. 2018)."

When your reader pulls up page 44 of Park, it should say something like: “A defendant contacts another by touching any item on the plaintiff’s body.” Different words but identical meaning.

If your reader must infer—say, you assume that this was the court’s reasoning based on the facts in the case, or you’re reading between the lines of some language and what the court didn’t say—don’t just cite the case for that general proposition. One option is to explain your inference directly:

"Given that the court in Park addressed a defendant who ripped a plate from the plaintiff’s hand, contact with the plaintiff’s skin is not needed. 324 F.3d 42, 44 (9th Cir. 2018)."

Your citation is not misleading because you’re telling your reader what inferences you relied on. You did the inferential work for them. You could also interpret the rule in your own words then explain the supporting facts or quotes with citations.

"Contact with the plaintiff’s skin is not needed. In Park, the court addressed a defendant who ripped a plate from the plaintiff’s hand. 324 F.3d 42, 44 (9th Cir. 2018). . . ."

Now you made clear where the inference came from. Credibility managed. But when your reader will not instantly know what a case said or why you cited it, explain it. So again, avoid using cites like this:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012)."

Instead, explain the citation’s purpose and operation plainly:

"The rule of plevin requires courts to inquire further when parties dispute the terms of an agreement. Park v. Hoffman, 654 F.2d 578 (2012) (considering a contract dispute and explaining courts cannot stop at plain language when interpreting)."

A Brief Must be Pudding with a Theme

Winston Churchill reputedly would refer to flavorless food as a pudding without a theme. He employed the same critique occasionally to a disorderly piece of legislation.  In 1935, he criticized a proposed statute, called the India Bill, as a “gigantic quilt of jumbled crochet work.” To him, it had no “theme,” “pattern,” “conviction,” “simplicity,” or “courage.”  It was, in his view, “a monstrous monument of shams.”

A legal argument without a theme and the other deficient qualities Churchill scored is equally indigestible. It suggests that the advocate had no plan in attempting to persuade the court and little faith in the arguments mustered. A theme unites disparate aspects of the case into a single consistent narrative that enables the reader to understand and sympathize with the argument. A theme weaves together the facts, law, and sense of justice in the writing behind a single common idea to convey a strong and favorable reaction from those you seek to persuade. It allows you to demonstrate that your proposed rule of law is fairer, less complex, more consistent with precedent, or more workable. It therefore better fits the established norms, modern trends, or recent developments. Although a reading judge may not later remember specific details about the case, a consistent theme creates a lasting impression and enables even a fuzzy recollection of key elements to blaze a familiar-seeming path to your desired result and imbue the apt analogies you invoke to have irresistible force.

Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit once advised that brief writers should:

                        Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument                                take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too                       many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme also allows you to praise the insight or demonstrate the error in the lower court’s decision with proper respect. The theme should fit the case naturally, acknowledging its limits and not be the product of a hard sell. Those limits may involve the types of cases it fits or fact patterns that call for different considerations. Those acknowledgments provide welcome credibility to the judicial reader. By tying together loose ends and excluding problematic applications for separate treatment in a logical fashion, the argument will render the judicial enterprise easier and the argument more appealing.

A theme is compelling storytelling. For a divided court that takes markedly different  approaches to issues, it can make all the difference. Take, for example, statutory interpretation. Some judges adhere to the text and do not look beyond it. Others seek to divine congressional intent from legislative history. Yet others focus on practical issues to make legislation workable. Regardless of the judges’ approach, a theme creates an overarching means of fitting each of those forms of guidance into a consistent answer that can yield a favorable result. Do not leave your panel with a flavorless pudding.

There's No Such Thing As "Legal Writing"

In law school, students take legal writing courses and learn, among other things, how to: (1) analyze and synthesize the law; (2) organize arguments using IRAC/CRAQ; (3) eliminate repetition and irrelevant facts from a legal document; (4) address counterarguments and acknowledge weaknesses in your case; and (5) cite to and rely upon legal authority. These skills are certainly useful and will help students maximize the persuasiveness of a motion or brief.

However, law students and lawyers should recognize that there is no such thing as “legal writing.” There is only excellent writing. In other words, whether you are writing an appellate brief, a fiction novel, a narrative non-fiction book, a textbook, a biography, or, for that matter, directing a movie, the principles and techniques of great writing remain the same.

Great writing has the following characteristics – regardless of whether it is in a legal context – and should be used by law students and lawyers to ensure the quality and persuasiveness of their legal documents.

1.    Hook the reader.

Why should readers care about what you have to say? To engage readers, you must hook them at the beginning of your motion or brief. This requires a powerful opening sentence, a compelling story and narrative arc, a vivid description of the critical events, and an appeal to the reader’s emotion (where appropriate) and sense of justice. Put simply, a great brief is like a great movie.

Consider the following examples:

Example 1:

In this case, the defendant is guilty of murder. On April 17, 2024, she murdered her husband. She did it because she wanted to be free to pursue another relationship with a man who refused to be with her while she was married. So she planned the murder and killed her husband in a very heinous manner that caused tremendous suffering and pain.

Example 2:

On April 17, 2024, at 10:45 p.m., the defendant stabbed her thirty-seven-year-old husband 124 times. Her husband screamed as he experienced unimaginable pain. He begged and fought desperately for his life. But the defendant ignored these pleas. Instead, she plunged a sharp knife into her husband’s body relentlessly. After being stabbed 123 times, seeing that her husband was still alive, the defendant plunged the knife into her husband’s chest one last time, ending a life that had so much promise. And she killed her husband solely because she wanted to be with another man.

The latter example, although not perfect, is more effective. It shows, in vivid detail, how horrible the defendant’s crime was and appeals to the reader’s emotions and sense of justice. After all, if you read the latter paragraph, how would you feel about the defendant? You’d probably want to convict her.

Also, make sure that your introduction is concise. If it is too long, you will lose (or at least annoy) the reader. Think about it: how many times have you gone to see a movie that was scheduled to begin at 8:00 p.m., only to have the movie begin at 8:40 p.m. because there were seven or eight previews? This understandably frustrates many moviegoers, and that frustration may affect how they view the feature.

You never want this to happen when drafting a motion or brief. If you write a lengthy introduction, you risk alienating the reader, and when that happens, it will affect the reader’s view of the credibility and persuasiveness of your arguments. Indeed, a critical part of hooking the reader is to get them to like the writer, which increases the odds that the reader will be captivated by and emotionally invested in your story (and give you the benefit of the doubt in close cases).

2.    Maintain your credibility.

Most people remember the Friday the 13th movie franchise, where Jason Voorhees mercilessly kills numerous groups of unsuspecting camp counselors. Although the first installment of Friday the 13^th received fairly positive reviews, the dozen or so sequels received almost uniformly negative reviews. Why? Well, at least in part, it was because no matter how many times Jason Voorhees was killed, including being axed to death, nearly decapitated, drowned, and ejected from a spaceship, he miraculously came back to life. What nonsense. The Friday the 13th sequels were critically panned because the story had no plausibility or credibility whatsoever.

Never make this mistake in your writing. For example, if you are representing a defendant who is charged with manslaughter for sending text messages to her husband that encouraged him to commit suicide, don’t say this:

The defendant is not responsible for this tragic death. For years, the defendant and her husband enjoyed a blissful marriage. However, the defendant’s husband suffered from depression for many years and, despite receiving treatment for depression and taking numerous medications, failed to improve consistently and substantially. Thus, when the defendant’s husband texted the defendant and expressed a desire to end his life, the defendant agreed that this was a prudent decision, and the defendant, despite the unimaginable difficulty, supported her husband’s choice. In short, this was an act of love. It was an act of mercy. And the defendant misses her husband every day.

Yeah, right. And Elvis faked his death. This is so utterly ridiculous that it requires no further explanation.

Additionally, make sure that your argument is consistent with and supported by the facts and law. Never misrepresent or mislead. Do not make arguments that fail to pass the smell test. Be honest with the reader. Acknowledge weaknesses in your case, such as unfavorable facts and legal authority, and explain why they should not affect the outcome you seek. After all, when you lose credibility, you lose your case – and reputation.

3.    Get to the point.

Over the years, many audiences have watched movies that, while in some instances quite good, could have been great except for the fact that they were insufferably long. For example, Titanic, which won the Academy Award for Best Picture in 1997, was a very good movie but far too long. Specifically, it took three hours and fifteen minutes to tell us what we already knew.

The ship sank.

It hit an iceberg.

There weren’t enough lifeboats.

People died.

Similarly, Pearl Harbor was needlessly three hours long. The Japanese attacked Pearl Harbor. It resulted in a tragedy of immeasurable proportions. We don’t need three hours to understand what we already know.[1]

Why are some movies too long? Because they include, among other things, unnecessary sub-plots, dialogue, and characters.

Poorly written motions and briefs make similar mistakes. They include irrelevant facts or law. They discuss legal issues that are tangential or entirely inconsequential. They incorporate unnecessary details. They are unduly repetitive. They cite five cases to support a basic legal proposition. In so doing, they tell a story that is more akin to Friday the 13th, Part 9 than Gone With the Wind.

When in doubt, err on the side of brevity rather than length, as unnecessarily long motions or briefs will bore a judge, damage your credibility, and decrease your chances for success. Get to the point quickly. Tell the court what you want and why you should get it. In many cases, less is more.

4.    Polish.

Your legal filings must be polished. They should have, among other things, no grammatical or spelling errors, artificial emphasis, unnecessary block quotes, and useless string cites.

If you cannot follow these rules, why should the reader trust that your arguments accurately reflect the law and facts?

5.    Appeal to common sense.

Judges are human beings, not robots. They do not apply the law to the facts in a hyper-technical manner. Rather, they want to do the right thing. Accordingly, and particularly where the law is broadly worded and can be interpreted differently, do not just argue that the law supports the result you seek. Instead, explain why it is the right and equitable result. In other words, where appropriate, incorporate policy arguments in your motion or brief.

***

Ultimately, do not think that legal writing is a separate genre or specialized form of writing. It isn’t. Focus on being a great writer, not a great legal writer.

 

[1] Certainly, some movies are justifiably lengthy, but only because the complexities inherent in the story and its characters require such length. Examples include Gone With the Wind and The Godfather, Part II.

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

A Few Unconventional Writing Tips

Great writing is not simply about following conventional rules. It is about knowing when—and how—to use unconventional writing techniques that enable creativity and enhance persuasion. Below are a few unconventional writing tips that can improve the quality and persuasiveness of your brief.

1.    Reverse the narrative.

There is no such thing as “legal” writing. There is only great writing (and writers).

The best “legal” writers do not simply use conventional writing techniques. Rather, they are creative. They break the “rules” when necessary. Most importantly, they use the same literary techniques used in fiction, narrative non-fiction, and memoirs.[1]

One of these techniques is reversing the narrative. Doing so means that you begin your narrative at the end, not the beginning of the story. The objective is to create a compelling opening scene that captures the audience’s attention and enables them to invest in your story on a personal and emotional level.

Consider the following examples involving a hypothetical case where a plaintiff is suing an airline after a plane crash took the lives of the plaintiff’s two children.

Example 1:

Universal Airlines Flight 5638 departed from Los Angeles International Airport on June 12, 2023, carrying 128 passengers, and bound for Newark, New Jersey. The plane, a Boeing 737, took off without incident and climbed to 35,000 feet. For the next two hours, except for moderate turbulence, the flight proceeded without incident. However, approximately two-and-a-half hours into the flight, the pilots struggled to control the plane, as it lost altitude at a rate of 2,000 feet per minute. Attempting to regain control of the plane, the pilots increased the plane’s speed and rate of ascent, but despite these efforts, the plane entered an aerodynamic stall from which the pilots could not recover because their ability to control the plane diminished substantially. Sadly, the plane crashed in Omaha, Nebraska, killing the pilots, crew, and all 128 passengers. The National Transportation and Safety Board concluded that a fire in the plane’s cargo hold, which was caused by faulty wiring, caused the pilots to lose control of the plane and led to the crash. Universal Airlines was negligent in failing to identify and repair the faulty wires and, as a result, is liable to the plaintiff for damages.

Example 2:

Omaha, Nebraska, a vibrant city where the College World Series is played annually and was scheduled to begin on June 14, 2023, lost its innocence two days earlier on June 12, 2023. In a field spanning 500 yards, 128 bodies, most of which were unrecognizable, lay dead. Among them were fourteen children, including five under the age of three, four beloved high school teachers, and a husband and wife who were traveling to New York with their children to visit Manhattan for the first time. Scattered across the debris field were clothing, jewelry, and stuffed animals. The most heartbreaking discovery was a letter written by a passenger as the plane was going down, which read “Mom, I will always love you.” The tragedy’s magnitude is immeasurable, and the most disturbing aspect is that it was preventable. Universal Airlines had the ability—indeed the responsibility—to fix the faulty wiring in Flight 5638’s cargo hold and to ensure the safety of its passengers. They did not. Valuing profit over safety, Universal Airlines, knowing that the wiring was faulty, deemed it an “acceptable” risk and continually certified that the plane was airworthy, even though it knew that the wiring was essential to maintain the plane’s hydraulic system. As a direct and proximate result of this negligence, 128 passengers never made it to New York. Their final resting place is in Omaha where only a few articles of clothing, stuffed animals, and a letter stating, “Mom, I will always love you,” remain.

This second example, while not perfect, is better. First, it begins at the end and, in so doing, captures the reader’s attention. Second, it appeals to the reader on a personal and emotional level by describing in vivid detail the gravity of this tragedy. Third, it personalizes the victims and emphasizes the need to reach a just result that compensates their families for this tragedy.

Ultimately, think of writing in the same way as directing a movie. Does your narrative hook the audience and maintain its attention? Does it appeal to their emotion? Does it include vivid descriptions that place the reader in the character’s shoes as the character is experiencing noteworthy events? Does it relate to you on a personal level and leave a meaningful—and lasting—impression? Often, beginning at the end is an effective technique by which you can achieve these objectives.

2.    Tell a non-linear story.

Sometimes, you should avoid telling a story, such as in a statement of facts, chronologically. This can produce a tedious narrative that loses the reader’s attention and fails to engage the reader on any meaningful level. It is often more effective to embrace non-linear storytelling, in which you focus your narrative on the major events in the story to highlight, for example, the damage your client has suffered or the appropriateness of the relief you request.

Consider the following examples involving a defamation lawsuit, in which the plaintiff claims that the defendant’s alleged defamatory statements led to substantial reputational harm.

Example 1:

The New Jersey Bobcats drafted the plaintiff in the first round of the major league draft after the plaintiff had a batting average of over .325 during three seasons at the University of Southern California. After two seasons in the minor leagues, the plaintiff was called up to the Bobcats’ major league team, where he played in forty-seven games, batting .279 while committing no errors at shortstop. It quickly became evident, however, that the Bobcats’ manager, Mike Johnson, did not like the plaintiff, likely because the Bobcats had chosen to call up the plaintiff to the major leagues rather than the Bobcats’ other top prospect, Jason Warner, whom Johnson stated publicly was a superior player. Angered by this decision, Johnson berated the plaintiff repeatedly in front of the players and fans and benched the plaintiff for the last two games of the regular season. After the season ended, the plaintiff met with the Bobcats’ general manager and requested to be traded. Subsequent trade talks with several teams, however, proved unsuccessful because of an article published by the New Jersey Times in which Johnson stated that the plaintiff was a bad baseball player, selfish, lazy, and uninterested in the team’s success. The plaintiff also discovered that Johnson had spoken to many teams’ general managers and warned them against acquiring the plaintiff. As a result, although initially expressing interest, no teams decided to acquire the plaintiff, and he was demoted to the Bobcats’ minor league affiliate the next season and eventually released. Johnson’s statements were defamatory and entitle the plaintiff to damages.

 Example 2:

Mike Johnson, the head coach of the New Jersey Bobcats, despised the plaintiff. Indeed, Johnson stated publicly to the media and general managers throughout the major leagues that the plaintiff was a “horrible person,” “a cancer in the Bobcats locker room,” a “below average player who could never succeed in the major leagues,” “a team’s worst nightmare,” and “one of the worst hitters he has ever seen.” Additionally, in the days before he was demoted to the Bobcats’ minor league system, Johnson publicly mocked the plaintiff in the Bobcats’ locker room, calling him a “joke” and “the worst thing to happen to the Bobcats in the last twenty years." Johnson made these statements even though the plaintiff batted .279 – and committed no errors -- in forty-seven games as the Bobcats’ starting shortstop.  Due to Johnson’s abusive behavior, the plaintiff requested a trade, and despite six teams expressing initial interest in acquiring the plaintiff, every one of them declined to pursue the plaintiff after Johnson made the above statements to their general managers. These statements, which were false and defamatory, ruined the plaintiff’s reputation and made it impossible for the plaintiff to pursue the successful baseball career that he had worked so hard for and rightfully earned.

Again, the second example is not perfect but is better than the first. Instead of telling the story chronologically, the second example begins with Johnson’s statements, reflecting the extent of Johnson’s hatred of the plaintiff, and which the plaintiff’s performance on the field contradicts. As a result, the second example portrays Johnson as an unsympathetic figure and someone who intentionally disseminated false information to harm the plaintiff’s reputation. This highlights the benefit of telling a story non-chronologically where the facts warrant.

3.    Break the rules.

This point requires little explanation. In law school, you will learn about IRAC/CRAC and conventional writing techniques, which are useful in many instances. However, great writers know that sometimes you should break the rules.  For example, sometimes you should be redundant. You should use the passive voice. You should use a little hyperbole. You should tell, not show, especially if showing involves including irrelevant or unnecessary details. Knowing when to break the rules is a hallmark of great writers.

In short, the best writers know how to think, not just how to write. They think about how best to tell a story, and sometimes that involves breaking the rules to maximize the persuasiveness of an argument.

 

[1] If you doubt this, read John Roberts’ brief in Alaska v. EPA, which is among the best briefs written in a case pending before the United States Supreme Court.

Don’t Forget to Flush

“This stall has a manual flush toilet.  Don’t forget to flush.” 

This is a sign posted in one of the restroom stalls at my institution.  And it irks me every time I see it.  I want to bring my red pen, cross out “Don’t forget,” and replace it with “Remember.”  Why?  Because “remember” is more concise than “don’t forget,” and the cognitive effects of negation on reading comprehension make it more likely that a reader will fail to flush because of the sign.

A lot of psycholinguistic researchers have studied the cognitive effects of negation.  It is generally understood that negation slows both processing speed and accuracy: “[N]egated phrases/sentences are processed with more difficulty (slower, with more errors) than the affirmative counterparts.”[i]  And a recent study discovered that negation can also thwart purpose and intent.

“Intuitively, negated concepts (e.g., ‘not good’) entertain some relation with the affirmative concept (e.g., ‘good’) as well as their counterpart (e.g., ‘bad’).”[ii]  In other words, “negation can either eliminate the negated concept and convey the opposite meaning (‘not good’ = ‘bad’) or mitigate the meaning of its antonym along a semantic continuum (‘not good’ = ‘less good,’ ‘average,’ or ‘somehow bad’).”[iii]

The fact that negation results in multiple possible meanings is not new information; any elementary school educator could tell you that instructing students to “walk in the hallways” is far more effective at obtaining the desired end than directing students, “don’t run in the hallways.”  The former instruction limits the universe of acceptable hallway behavior, while the latter eliminates only one of many possible means of hallway activity (i.e., while not running, one could still skip, somersault, dance, or skateboard in the hallways and comply with the directive).

But researchers discovered that, between the options of elimination and mitigation of a negated concept, people were more likely to interpret negation as mitigating, rather than eliminating, the concept.[iv]  In other words, a reader faced with the sentence, “this coffee is not hot,” is more likely to understand the coffee to be something less than hot (e.g., room temperature) rather than cold.[v]

An additional issue arises with the use of negation—priming your audience for a potentially undesired outcome.  In my restroom example, the word choice in the sentence, “Don’t forget to flush,” primes the reader to forget (the undesired result), rather than remember (the desired result).  And the word choice coupled with the fact that readers tend to overlook the word “not” makes it more likely that the sign would cause someone to forget, rather than remember, to flush.

As professional wordsmiths, attorneys should use care in their choice of when and how to use negation in their writing, recognizing its potential effects on both meaning and understanding.

 

[i] Arianna Zuanazzi, Pablo Ripollés, Wy Ming Lin, Laura Gwilliams, Jean-Rémi King, David Poeppel, Negation mitigates rather than inverts the neural representations of adjectives, PLOS Biology (May 30, 2024), available at: https://journals.plos.org/plosbiology/article?id=10.1371/journal.pbio.3002622 (last accessed July 7, 2024).

[ii] Id.

[iii] Id.

[iv] Id. The researchers also noted that their findings were limited to scalar adjectives (i.e., those that occur on a continuum), rather than true dichotomies (e.g., “dead” versus “alive”).

[v] NPR, Short Wave Science (June 3, 2024), available at https://www.npr.org/transcripts/nx-s1-4978901. Another issue arises with negation—a lack of clarity with respect to which part of the sentence is affected by the negation.  In other words,

in a sentence like Rachel did not bake the bread, potential alternatives for the negation can be found along the dimension of the actor, along the dimension of activities and along the dimension of the patient, that is, Rachel could have baked something else, e.g., a cake, she could have done something else to the bread, e.g., cut it, or someone else could have baked the bread.  As the example demonstrates, alternatives are semantically related to the negated information (e.g., entity, event).

Viviana Haase, Maria Spychalska, Markus Werning, Investigating the Comprehension of Negated Sentences Employing World Knowledge: An Event-Related Potential Study, Frontiers in Psychology (Oct. 2019), available at:  https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6843029/ (last accessed July 7, 2024).

Trapped Between Two Precedents

            Appeals often turn on where the line exists between broad principles and specific applications. Advocates fondly cite high-flown rhetoric about something that favors their clients and the heavy burden that must be met to overcome it. On the other hand, opponents may meet that argument with declarations about how no right is unfettered and provide examples of exceptions that align with their position.

            Take, for example, the right to engage in political discussions. A familiar description of the right holds that it represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[1]  The decision also recognizes that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”[2] In fact, the New York Times Court laid down the gauntlet by declaring that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[3]

The clarion call for broad constitutional tolerance of political speech that the opinion represents provides welcome fodder for an advocate seeking to ride a free-speech wave. Yet, just a year later, the Supreme Court retreated a bit from that description of the scope of political speech. Rather than treat the right as completely unfettered, the Court acknowledged that freedom “implies the existence of an organized society maintaining the public order, without which liberty itself would be lost in the excesses of anarchy.”[4]

The two decisions set up a traditional appellate issue that can occur in any area of law: where is the cutoff between the promise and the limitation at issue in a case. Certainly, that conflict cannot be resolved in the abstract. It requires the factual context to determine which approach should prevail in a particular scenario.

            What is important, though, is that an advocate acknowledge the balancing that must take place. Unlike some negotiations, appellate advocacy is not about staking out an extreme position and hoping that a compromise gives you most of what you really want. Instead, it is about convincing your panel that you have adopted a workable and reasonable approach that it should endorse. That is why it is important to recognize the limits of your position, anticipating the pushback and responding to why it still works in your favor.

            At the same time, your position may require new exceptions or a wholesale rethinking of existing precedent. The Supreme Court has developed a reputation for not taking stare decisis as seriously as its predecessors. It has shown a willingness to reconsider precedent and abandon it because it believes the holding was wrong.

            In fact, two justices have called for New York Times, the case I quoted at the top of this post, to be reconsidered, although not as a result of any hostility to free speech per se. Justice Thomas, for example, advocates for reconsideration of the actual-malice standard that New York Times articulated to protect citizens from being sued by public officials over criticism. He has written that the case and decisions extending it “were policy-driven decisions masquerading as constitutional law” without a basis in text, history, or constitutional structure.[5] He has also expressed concern about the “proliferation of falsehoods” as a “serious matter” that might be remedied by “traditional remedies like libel suits.”[6]

            Justice Gorsuch has expressed a similar view, suggesting that the changes in “our Nation’s media landscape . . . in ways few could have foreseen” allows “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world” and should permit some type of corrective mechanism like libel to work as it once did.”[7]

            I mention the possibility of an overruling of precedent, not because I believe it warranted in the case of New York Times, but because a request to reconsider precedent at the proper level of court can provide another tool for an advocate boxed in by precedent, particularly when there are ready advocates for that position on the court.

 

[1] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] Id. at 271-72 (citation omitted; ellipses in orig.).

[3] Id. at 269.

[4] Cox v. Louisiana, 379 U.S. 536, 554 (1965):

[5] Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5 (2023) (Mem.) (citations omitted) (Thomas, J., concurring in the denial of cert.). Blankenship is only the latest of opinions written by the justice expressing this view.

[6] Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of cert.).

[7] Id. at 2427 (Gorsuch, J., dissenting from the denial of cert.).

Should We Still Avoid Contractions in Formal Legal Writing?

As summer begins in full, I have been reflecting on . . . grading 1L appellate briefs.  I know, this is a sickness.  However, this spring, I marked more papers with incredibly odd contraction use than in past years, so I am pondering “didn’t,” wasn’t,” and more as I spend the summer working on my teaching materials for fall.

Like many, I teach new law students to move past any text-style informal writing with emojis, missing capitalization, and the like.  I assign reading on apostrophes and Oxford commas, and we even work on punctuation in class.  By spring, most of my students are much more precise and careful in their writing, with one large exception:  contractions. 

Given the increase in contraction use by some commentators, like Bryan Garner, and courts too, I expect to see occasional contraction use by my students.  See generally Bryan Garner, The Elements of Legal Style 81-82 (Oxford Press 2001); https://www.plainlanguage.gov/guidelines/conversational/use-contractions/ (explaining why Garner and some others believe contractions can make writing more accessible and understandable).  Many authorities advocating for the use of contractions also advise caution, however.  As one commentator explained:  “To use an example from MLA, if you’re writing to a judge requesting leniency in sentencing, use of contractions could seem dismissive. Like everything in writing, audience and context are key.”  Chris R., When Are Contractions Too Informal?,

https://proofreadingpal.com/proofreading-pulse/writing-guides/when-should-i-use-contractions/(Sept. 1, 2017).

Following this context approach, I suggest my students be direct and clear, but respectful, in their formal writing and avoid contractions in court filings.  Then, we discuss using the “house style” of their future firms, offices, or supervisors for guidance on contractions in their inter-office writing.  I quote Chelsea Lee, who noted:  “Asking whether you should use contractions in formal academic writing is sort of like asking whether you should wear a bathing suit to a party—it depends on the type of party. Is it a pool party or a fancy dinner?”  Chelsea Lee, Contractions in Formal Writing: What's Allowed, What's Not, https://blog.apastyle.org/apastyle/2015/12/contractions-in-formal-writing-whats-allowed-whats-not.html (Dec. 10, 2015). 

This year, however, some of my students included so many contractions in their briefs, despite my PowerPoint slides and rubric expressly banning contractions in briefs, that the contractions interfered with readability.  These students also wrote briefs right at the word limit, and the briefs often read as if the writers made seemingly last-minute decisions to save words by inserting contractions.  

Of course, I deducted writing style credit from these briefs based on the lack of readability caused by using so many contractions.  Nonetheless, I would like to give a greater incentive to follow my contraction suggestions more closely next year.  I want to convince students that there is no advantage to using many contractions instead of carefully editing.  Accordingly, for students’ formal appellate brief assignment, I might count most contractions as two words for word limit purposes.

On the other hand, as more judges use contractions in their published opinions, perhaps it is (dare I say, it’s?) time for me to embrace contractions in briefs too.  In a quick Westlaw search, I found cases on many interesting ways attorneys have tried to circumvent word limits in briefs, but no published cases complaining only about contraction use.   

As you draft your next briefs and motions, I urge you to think about your contractions.  And if you are also spending a possibly-unhealthy amount of time this summer on contractions, please feel free to let me know.

Neurodiversity and Legal Advocacy: Dyslexia

This is part two of my continuing series of posts about neurodiversity and legal advocacy. In today's post, I'll talk about my own neurodiversity - dyslexia. While each type of neurodiversity presents differently, I hope some of my personal experience and research can help you as either a teacher, partner, or mentor when you encounter dyslexic students or associates. If you are dyslexic yourself, the following may help you process your differences and see how they can be turned into strengths.

Studies estimate that from 10-20% of the population has dyslexia. Dyslexia involves a series of genetic, neurological differences that result in a different way of seeing the world. Given the prevalence of dyslexia, it is likely that you have taught or work with dyslexic thinkers.

1.    Strengths

Although traditionally seen as a disability, Richard Branson considers dyslexia to be his superpower, and several companies now hire dyslexic thinkers purposefully because of their strengths. Indeed, LinkedIn now includes "dyslexic thinking" as a skill. Those strengths include:

    A.     Big Picture Thinking

Most dyslexics see themselves as "big picture thinkers." They see trends and patterns in data more quickly than neurotypicals. This permits them to see how things connect in complex systems, categorize broadly based on similarities, and, conversely, quickly spot things that are out of place. The GCHQ, a British intelligence and security agency, employs over 100 dyslexic thinkers to assist in their analysis for this reason.

    B.     Problem Solving

Dyslexics tend to score very high in reasoning skills. Their big-picture view of the world helps them understand patterns and systems quickly, and they can then simplify those complex systems. They are logical and strategic thinkers. In the legal world, this means dyslexics may be able to see legal solutions based on prior precedent a bit more clearly -- once they understand the purpose and policy behind prior precedent, they can extrapolate it to newer areas quickly.

    C.     Creativity

Picasso, Pollack, Spielberg, Einstein and Roald Dahl were all dyslexic thinkers. That doesn't mean all dyslexics are artists, but most do see the world a bit differently, and process and explore it differently as well.

    D.     Empathy

Whether a function of their "big picture" thinking, their experiences in coping with difficulties in reading and writing, or both, dyslexic thinkers score high in empathy. They typically sense, understand, and respond to other people's feelings more quickly and accurately than neurotypical people.

    E.     Spatial Reasoning

When dyslexic children learn to read, the right hemisphere of their brain lights up on MRIs. Neurotypical children usually do not have the same response. This is hypothesized to be because the dyslexic brain tends to use spatial reasoning for everything, including reading. Rather than just hearing and assigning sounds to letters, the dyslexic child seems to create patterns and "shapes" for each word. This spatial reasoning persists in dyslexic thinking, with dyslexics often scoring highly on spatial reasoning and 3D imagination. This may be why they can be strong theoretical mathematicians, but still make sequential errors (they see the forests but miss the trees).

    F.     Communication

When these strengths are combined, they can make dyslexics excellent communicators. Big-picture thinking, empathy, and creativity mean that dyslexics can be strong narrative story-tellers. And Walter Fisher's narrative paradigm of communications suggests that this makes them more persuasive.

2.     Challenges and coping mechanisms

Of course, being dyslexic isn't always wonderful. Dyslexia was categorized as a disability for a reason - it carries with it significant challenges. People with dyslexia are sometimes described as being neurologically "spiky," with scores both higher and lower than the neurotypical (as that name would suggest). While building on the strengths listed above, the dyslexic thinker needs to recognize those challenges. Fortunately, there are numerous aids in helping them do so.

    A.     Organization.

Big picture thinkers need to learn to break things down into steps. While it is useful to see the forest, the trees still matter in the law. Brian Garner's "madman, architect, carpenter, judge" process is extremely helpful to me. I love the exploration of research (another dyslexic trait) but feel constrained by early organization. Using Garner's process, I naturally compose my big picture argument, use the law I find to create structure, then build and rebuild the argument.

    B.     Spelling and Grammar.

Spelling and grammar are most dyslexic thinkers' kryptonite. Yet most rubrics weigh them heavily, both because they matter and because they are easy to grade. This frankly inequitable bias has to be addressed, because it will impact them professionally. But it can't paralyze the writer.

I once had the privilege of spending an evening talking with Ray Bradbury. His primary writing advice? "Write the damn thing!" Dyslexics need to get a draft on paper without fear of failure. That may mean speech to text software. It may mean cut and pasting blocks of text from cases first, then revising later. But getting something on the page is what matters.

Then revise, revise, revise. Word has learning tools that are thoroughly explored in the website listed below. AI could also be used to help. But the main emphasis for a dyslexic writer should be that good writing is rewriting, even for neurotypical writers, but especially for dyslexic writers. A second set of eyes is also highly recommended. My wife, a history professor, reads almost everything I write. Including these blogs. If you aren't blessed with a wife with good grammar skills and the patience of Job, you probably have a paralegal, legal secretary, or co-worker who does.

    C.     Instructions.

Because dyslexics are big-picture thinkers, and because they often have some decoding lag-time, giving them instructions can be tricky. Rather than just telling students to "write a memo," the dyslexic student may need the necessary steps broken down for them. And they benefit greatly from iterative learning - letting them edit and rewrite assignments is a huge boost both in learning and emotional impact.

    D.    Short-Term and Working Memory.

Several studies have shown that dyslexic thinkers can have difficulty with both short-term and working memory. Working memory is a subset of short-term memory that involves remembering sequential steps, planning, and behavioral related decision making. We forget our keys and people's names and phone numbers with alarming regularity.

One of my coping mechanisms is to write things down immediately. If I am researching and have a thought, I write it down quickly. If I have a text or notification come through, it will probably disappear if I do not. I do the same at oral argument - I furiously write down questions and statements that I need to address and draw arrows and write numbers to organize them. Once I have done that, I am locked in, because I can visualize the new argument.

There are several strategies to look into: color association, chunking, visualization, and mnemonics are all useful. As is technology. Calendaring and note apps are a part of everyday life for me and most dyslexics.

    E.     Managing Emotional Impact.

Being a dyslexic student, or advocate, isn't easy. Issues with memory, organization, and difficulty grasping instructions quickly are all anxiety-inducing. Reading -- a huge part of our day -- is draining because of the additional decoding that must take place. Text-to-speech readers may be helpful. Extra time accommodations aren't necessarily an advantage to such students, so much as a way to help level the field. But making sure their strengths are valued is also key. Hopefully, a strength-based approach to your interactions with these students will help them see the value in their differences.

3.     Conclusion

Dyslexia makes me a better advocate, but only because I've learned to capitalize on its strengths and cope with its weaknesses. Hopefully you can help your students, associates, or yourself do the same by following some of these tips.

 

Further Reading

Made by Dyslexia - Website with tests, instructional videos, and teaching tools

Taylor, H and Vestergaard MD: 'Developmental Dyslexia: Disorder or Specialization in Exploration?' Frontiers in Psychology (June 2022).

 

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)

A Font by Any Other Name Does Not Read the Same, Redux

On May 19^th, my post on this blog covered the different requirements and suggestions that federal circuit courts have for the font used in any brief. A Font by Any Other Name Does Not Read the Same.

Now, the Seventh Circuit has weighed in on the subject in a new opinion written by Judge Easterbrook. The underlying dispute concerned a business lease. However, what made the opinion newsworthy was its discussion of fonts. The plaintiff’s lawyer chose to write his opposition to a motion to dismiss using “Bernhard Modern, a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show,” according to the court. AsymaDesign, LLC v. CBL & Assocs. Mgmt., Inc., No. 23-2495, 2024 WL 2813827, at *2 (7th Cir. June 3, 2024). If you assumed that comment telegraphs the court’s attitude about its use, you stand on solid ground.

The opinion directs practitioners to review the court’s Handbook, available at https://www.ca7.uscourts.gov/rules-procedures/Hand-book.pdf, for “important advice about typography” and reminds attorneys that they should give due regard for the “sore eyes of judges who must read copious legal materials.” Id. The Handbook, the court reminds everyone, suggests that lawyers select “type-faces (often called fonts) suited for use in books and other long-form presentations” and choose the “most legible face available to you.” Id. It further states that “[d]isplay faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages,” “make understanding harder,” and is not exactly conducive “to easy reading of long passages.” Id.

It concludes with the fervent “hope that Bernhard Modern has made its last appearance in an appellate brief.” Id.

Two days later, an in-circuit district court cited that passage to register its complaint about a brief that omitted page numbers. Kika C. v. O'Malley, No. 22 C 1502, 2024 WL 2873557, at *3 n.6 (N.D. Ill. June 5, 2024).

Neurodiversity and Legal Advocacy: Introduction

Neurodiversity is a relatively new term applied to the range of differences in the human brain regarding social interaction, learning, attention, mood, and other mental functions. Rather than seeing a learning difference (like dyslexia) as a disability, neurodiversity looks at that difference as a point on a continuum of human perception and function. That perspective allows us to see the diagnosis as a difference, not a deficit.

Educators are increasingly aware of certain diagnosed differences because of the accommodations offered to address them. But simply allowing for extra test time or reading software does not address the opportunities that these differences can bring to the table. See Jennifer Kindred Mitchell, Teaching to Neurodiverse Law Students, 29 NO. 2 Persp. Teaching Legal Res. & Writing 49 (2022).

I know. I was diagnosed with dyslexia at a young age. I continue to rely heavily on spelling correction and third-party editing to address my difficulties with spelling and grammar. But I have also come to realize, over the years, that I have attendant strengths that make me a better advocate. My long-term memory, attention to narrative, empathy, and spatial reasoning are different, and often stronger, than those without dyslexia.

Each student is, of course, different. Some present with clear diagnoses. Some have learned to live with, or mask, their neurodiversity without disclosure to their teachers. Awareness of the different presentations of neurodiversity helps educators identify difficulties and strengths and address them head on.

Over the next few weeks, I will address three categories of neurodiversity from a strengths-based approach so we can be better at identifying and helping students and young lawyers with those differences cultivate their strengths and cope with their difficulties. I will start with dyslexia, since that is my experience and an area of some personal study, then address ADHD and autism.

If you have experience with neurodiversity in advocacy, either as a teacher or learner, I would love to hear from you as I prepare those posts. This is a young area and I think we would be well-served by putting our heads together and learning how to better help those who see the world a bit differently.

(Photo attribute: Bill Sanderson, 1997. Credit: Wellcome Collection. CC BY 4.0)