Thursday, August 22, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar is inspired by the start of a new law school year. I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing. I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.
In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.” By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.
The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there. In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work. While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.
A Commenting Ethos Is A Perspective, Not A Technique
Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback. Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.” These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing. (You can learn about some of these techniques in the monograph and at the end of this article.) But, this post is not about technique. Instead, it is about the perspective one can take when giving feedback. That is, how should one think about the feedback task? How should a lawyer giving feedback approach the work? What attitudes should she adopt?
One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos. Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.
Aristotle considered ethos as having three dimensions: competence, character, and goodwill. In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback. A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future. Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.
Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member. In other words, ethos is a social act that takes place in a particular cultural context. Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation. The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback. I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.
A Positive Commenting Ethos: Expert Coach, Not Rival Writer
Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?
An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback. The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product. Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.” This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.
The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong. This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations. The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.
The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.” Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge. The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance. An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.
An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.” Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away. Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work. The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.
Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging. So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.
Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task. But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals. If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Monday, August 12, 2019
In March, Professor Teri McMurtry-Chubb blogged about her forthcoming article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, which will be published in the Washburn Law Journal. The article can now be accessed here on SSRN.
As Prof. McMurtry-Chubb explained in her post, her article explores "how bias shapes lawyer analytical and reasoning processes," and it is the product of "a 6-year empirical research study [that she] conducted involving student motion and appellate briefs generated from case files involving social justice issues." In her article, Prof. McMurtry-Chubb goes into more detail on the different problems that she used in the study--ranging from legacy admits to law school to Indian Child Welfare Act cases. Her article, her study, and the results are simply fascinating and raise important questions for law schools. As she explains in the article,
This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity—equity and inclusion less so—as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring.
. . . .
. . . The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote
better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.
In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers’ inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice.
Thank you Prof. McMurtry-Chubb for your important contribution to how we approach legal education. I am certainly going to be mindful of these issues as I teach this semester.
Thursday, August 8, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar returns to the rhetorical strategy of setting-off text as a way focus a reader’s attention and create meaning. In my post from a month ago, I described how using lists in legal writing employs visual rhetoric strategies to both stack-up and set-off important information. In this post, I return to the concept of setting off information, this time through a punctuation mark: the em-dash.
In his 2006 book, The Economics of Attention: Style and Substance in the Age of Information, Richard Lanham argues that “attention is the commodity in short supply” in an information economy. Legal writers know this all too well; they have an ethical duty to keep a reader’s attention focused on the content of complex legal documents. But busy legal readers are inundated with more information than they can possibly digest, have access to that information at speeds faster than ever, and are likely subjected to more distractions from reading on screens that are animated with competing demands on the reader’s attention. In a digital world, the legal writer’s need to point the reader toward important information is more critical than ever.
A punctuation mark can be an efficient and effective way to visually call a reader’s attention to an important point and to shape the meaning of the text it punctuates. An underused punctuation mark with visual rhetorical impact for attention-getting is the em-dash. When used appropriately—and sparingly—the em-dash is an easily implemented, powerful visual rhetoric technique for legal writing.
Em-dashes typically are made by typing two hyphens between two words with no spaces between any of the characters. Remember that a hyphen (-), which connects compound words and modifiers (among others) like em-dash, absent-minded, or mother-in-law, is not an em-dash. An em-dash—appearing on either side of this text—is at least twice as long.
An em-dash visually separates (1) a phrase or clause within a sentence or (2) information at the end of a sentence from the rest of the sentence. When a pair of em-dashes are used within a sentence, they typically take the place of commas or parentheses; when a single em-dash is used toward the end of a sentence, it typically takes the place of a colon or semi-colon.
Em-dashes take advantage of both novelty and white space to draw the reader’s eye to text that either follows a single em-dash or lies between em-dashes. Used sparingly, em-dashes have novelty; readers will notice them and ask, “I wonder what this is about?” In addition, an em-dash creates more white space around text than that created by a comma, semi-colon, or colon, visually highlighting the selected information and causing the reader to notice it. While commas, parentheses, semi-colons, and colons also set-off information, they do so in a less forceful and attention-grabbing way. The em-dash, on the other hand, is more assertive and commanding—hey! this text is important!
An em-dash, however, does more than just call attention to text; the em-dash also provides a clue for the reader about how to give meaning to the sentence as a whole. The em-dash is a visually persuasive framing device; the em-dash helps the writer select a dominant meaning for the sentence while deflecting other meanings that are available.
Take for example this sentence from a legal argument in a case where Jones is arguing that Jones’s marriage to Smith should be annulled because the marriage took place while Jones was under duress:
Smith sent Jones an email the day before the wedding threatening to expose Jones’s drug problem to his parents.
This sentence has essentially three pieces of information:
- Smith sent Jones an email.
- The email threatened to expose Jones’s drug problem to his parents.
- This email was sent the day before the wedding.
In the sentence above, all three pieces are expressed in a way that makes the ideas contained in them roughly equal in importance. That is, the frame of the sentence is balanced evenly, all of the ideas in the sentence share the same importance, and the reader is free to decide which parts of the sentence to give more or less attention.
But notice what happens to the sentence’s meaning when one of the pieces of information is set off with em-dashes:
Smith sent Jones an email—the day before the wedding—threatening to expose Jones’s drug problem to his parents.
Now, by using em-dashes, the writer causes imbalance in the sentence’s frame, visually setting off what the writer wants the reader to notice: the timing of the threatening email. The em-dashes guide the reader about how the sentence is meant to be read; the timing of the email is the most important information. The em-dashes help prime the reader to expect that Jones’s duress argument will be stronger because of the e’mail’s timing. By using em-dashes, the writer deploys dramatic interruption to call attention to important information and to shape the meaning of the sentence. And this is accomplished with only punctuation.
Notice what happens to the sentence if the writer wants to emphasize the content, not the timing, of the email:
The day before the wedding, Smith sent Jones an email—a threat to expose Jones’s drug problem to his parents.
Here, the em-dash sets off the text at the end of the sentence. Visually, the single em-dash acts almost like an arrow, pointing the reader toward what the writer wants to be the most important information. Structuring the sentence this way places the reader’s attention on the threatening email’s content. Instead of being primed to focus on a timing argument, the reader is primed to focus more on the threatening language. By moving the em-dash to call attention to a different part of the sentence, the writer changes the meaning of the sentence for the reader.
While legal writers should use em-dashes to draw attention and to help create meaning, writers should be careful not to overuse them. Overuse causes em-dashes to lose their dramatic visual impact. Think of em-dashes like the salt on the top of a salted caramel. A little bit of salt enhances the sweet flavor, making the candy more satisfying; too much salt ruins the whole thing.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Monday, August 5, 2019
Over the summer, I have been going through moot court brief section by section, giving moot court drafting and scoring advice. In this final installment I will discuss the overall editing of the brief. There is nothing that sours a reader faster than finding multiple editing errors. As I’ve mentioned before, typos in the Questions Presented do not give me much hope of finding an excellent brief as I turn past the first section. Over the years, students have been most frustrated when they realize that their brief did not score well because they violated the word count or lost points for some other avoidable editing issue.
Often, moot court briefs are scored separately for content and form, with a set of scorers specifically tasked with going through and looking for editing and citation issues. I always suggest doing separate editing passes to make sure that your brief is as close to perfect as possible before you turn it in.
These two blog posts by Joe Regalia go into more depth on editing word choice and using technology to uncover your writing blind spots and are worthwhile reads:
Scoring-wise, style often plays a significant role in total points. In the sample score sheet I reviewed, the Overall Presentation was worth 15 of 100 points.
Is the writing style clear, concise, and persuasive?
Does the brief effectively present the case for the client?
Does the brief look polished and professional?
(15 points possible) _________________
In another competition with separate technical scoring, every error, whether grammatical or citation, resulted in a point subtracted. That adds up quickly when every point matters. Often brief scores tend to cluster, and even a couple of stray errors can take a brief out of the running for a high score.
Here are my top tips for editing a moot court brief:
* Set an internal deadline for the team that is 48 hours before the actual deadline to leave time for additional read-throughs. Have accountability with a coach or director that the internal deadline is met.
* Every team member should read the brief in hard copy at least once. The more eyes on the brief, the better the chances of catching everything.
* Use editing technology, but don’t mindlessly rely on it. Grammarly is what I typically recommend.
* Try to edit after a good night’s rest and when it’s been a few days since you looked at the brief to give yourself better perspective and clarity on your writing.
* Double check all of the little things. Have you complied with all of the competition rules? Are the cites perfect? Are the tables organized and cited properly? Does the cover look polished and professional?
Ensuring that your brief is well-edited will not guarantee that you have the winning brief for a competition, but a poorly-edited brief will not even be in the running.
Wednesday, July 31, 2019
I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.
Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.
These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.
Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.
Thursday, July 25, 2019
Welcome to Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar introduces the concept of rhetorical ontology to help explain the persuasive power of the list. In my last post, I suggested that the list has the visual rhetorical features of stacking-up and setting-off information. In this post, I explore other persuasive features of the list through the lens of rhetorical ontology.
This post is not an exhaustive introduction to rhetorical ontology: consistent with the Rhaw Bar theme, we’ll be savoring just a little ‘bite” of the theory. While some readers may be skeptical about a post that explains rhetorical theory, I think that legal communicators become expert legal communicators when they understand rhetorical theory and use it to inform their writing. Understanding rhetorical theory makes legal writers wiser practitioners of the craft; writers can make better choices because they understand—or at least have a plausible way of understanding—why some rhetorical choices might be better than others in a given situation. What I’ve learned in twenty years of teaching legal communication is this: legal communicators with a working knowledge of rhetorical theory have a multitool at their disposal; without it, they risk using the same pocket knife for everything. That is, theory provides better understanding that leads to better doing.
So, with that, let’s look at rhetorical ontology as a theory that can help develop ideas about the way lists work to persuade in legal writing.
Rhetorical ontology —also known, loosely, as the “rhetoric of things”—posits that rhetoric happens at the level of material objects, not just at the level of language. That is, rhetoric is not just about humans assigning meaning to the objects around them. Rather, “things” have their own rhetorical agency—they are agents that interact in and impact rhetorical relationships.
Because rhetorical ontology focuses on the rhetorical agency of objects, one might think that “things” are limited to non-textual objects like trees or couches or rain or the freeway. But, as Scott Barnett and Casey Boyle point out in the excellent introduction to their book, The Rhetoric of Everyday Things, the classical rhetoricians recognized the ontological features of rhetoric in texts and symbols (interestingly, in the kind of texts lawyers work with):
One of the ways Aristotle [in his writings on rhetoric] distinguishes artistic and nonartistic proofs . . . is on the basis of their thingness and material reality. Artistic proofs are those the rhetor herself invents, and they include, most prominently, syllogisms and enthememes. The forms of nonartistic proof, on the other hand, Aristotle defines as laws, witnesses, contracts, tortures, and oaths. Although each of these has a clear discursive dimension, what distinguishes them from artistic proofs is that they “are not provided by ‘us’ but are preexisting.”
So, rhetorical ontology in brief writing, for example, might be thought of as the idea that the typical features of a brief (e.g., a question presented or jurisdictional statement) have persuasive agency in and of themselves, before we as writers creatively engage them. Extending a bit further, Barnett and Boyle suggest that rhetorical things “gather” other rhetors to interact on matters of common concern. In the context of a legal document like an appellate brief, motion, complaint, answer, discovery request, or contract, the document gathers to it other rhetors (e.g., attorneys, judges, clients, property, or other documents) to interact with it in particular ways that the document itself helps to define.
So, how does a list in legal writing gather us as writers and readers to a matter of common concern in a legal document? As I alluded in my prior post, a list gathers writers and readers to it by setting off and stacking up information. The ability to use white space to draw attention to itself and to show the weight of an argument are two aspects of the list’s rhetorical “thingness.”
But, a list has other rhetorical features that reveal themselves through the lens of rhetorical ontology: lists can convey disjunction, disrupt flow, create units for analysis, flatten hierarchies, and resist narrative.
Academic and video game designer Ian Bogost in his book, Alien Phenomenology, Or What It’s Like to be a Thing, places lists in the category of “ontographs”—“record[s] of things juxtaposed to demonstrate their overlap and imply interaction through collocation” (i.e. placing things side by side). Accordingly, says Bogost, lists produce disjunction, rather than flow, in presenting the relationship between concepts. Lists, in other words, let us see a collection of things or the units of an argument, concept, or idea, without necessarily showing the flow or connections between them. Moreover, in her book chapter, Cookery as Flat Ontography, academic Katie Zabrowski Dickman adds that lists, “upon reading, are jarring. The literal flow of our reading is disrupted as we traverse the commas between words in a list both visually and with our breathing. The jarring is productive, attuning us to the distinction between objects.” Zabrowski says that lists also resist the typical narrative structure of the “story”—a structure that legal writers frequently privilege in briefs as a way of presenting the client’s case.
Two examples from legal writing show the power of Bogost’s and Zabrowski’s theorizing to explain the persuasiveness of a list.
Local Rules for Statements of Material Facts. Consider a version of the federal district court local rule that governs the features of summary judgment motions. That rule requires the statement of undisputed material facts in a motion be presented in a numbered list. For example, Local Rule 56.1(a) of the United States District Court for the Northern District of Illinois provides:
[A] moving party shall serve and file . . .a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law. . . . The statement . . . shall consist of short numbered paragraphs . . . . Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.
The local rule emphasizes the lists’ rhetorical features highlighted above. First, the short numbered paragraph format dictates that the facts are detached from each other, broken apart into smaller units for consideration. This means that the separateness and isolation of each fact unit is emphasized, and a view of the facts as a whole is de-emphasized. Notably, the responding party is expected to engage the facts in the same disconnected manner, responding to each of the numbered fact paragraphs separately. Rhetorically, then, by demanding a list of facts, the rule privileges disconnection over connection, separation over integration.
Second, by requiring the presentation of material facts in a list, the rule limits writers’ ability to present facts in a narrative arc—a form that emphasizes the relationship between facts. Instead, the side-by-side nature of the list’s items makes the presentation less hierarchical; no one fact appears more important than another. The facts are presented as separate units with equal weight. By looking at the list an an ontograph, we can better appreciate how the local rule rhetorically shapes how the information in the list is structured, controlled, and ultimately perceived.
Creating Categories in Judicial Opinions. Consider a footnote that appeared in the United States Supreme Court’s recent opinion in American Legion v. American Humanist Association, where the Court held that The Bladensburg Cross, a World War II memorial displayed on public property in Prince George’s County, Maryland, was not an unconstitutional establishment of religion under the First Amendment. In his opinion, Justice Alito set out a numbered list proposing six “rough” categories of Establishment Clause cases (internal citations omitted):
(1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies; (2) religious accommodations and exemptions from generally applicable laws; (3) subsidies and tax exemptions; (4) religious expression in public schools; (5) regulation of private religious speech; and (6) state interference with internal church affairs.
Justice Alito then suggested the possibility of seventh category in a separate sentence, saying “[a] final, miscellaneous category, including cases involving such issues as Sunday closing laws. . . and church involvement in governmental decisionmaking, . . . might be added.”
In Justice Alito’s categorizing footnote, the rhetorical ontology of the list can be seen at work. First, using a list format highlights a point that appears important to Justice Alito in the body of his opinion—the Establishment Clause is not an abstract monolith; instead, the clause is made up of six separate categories, each of which must be considered separately. Justice Alito effectively uses the list structure to explode the abstract “whole” of the Establishment Clause and describe it as real spaces and events of the lived-in world—monuments, schools, churches, speech, and taxes, for example. By presenting the Establishment Clause as a collection of things, his opinion, then, can focus on just one of them.
Moreover, Justice Alito’s use of the list avoids the problem of creating a hierarchy of Establishment Clause categories; he does not need to explain to the reader how the categories relate to each other. While readers might infer a hierarchy or relationship between the categories, Justice Alito offers them a side-by-side equals, each apparently as important as any other, each distinct from any other.
What can we make of Justice Alito’s last and separate sentence that identifies a seventh “miscellaneous” category? This sentence, by its contrasting style, helps to show just how rhetorically effective Justice Alito’s six-part list is in avoiding hierarchy. By placing his seventh category in a separate sentence, he demotes it in relation to the other six thereby creating hierarchy. (We could also imagine a situation where separating an item from a list in this way would promote it in a hierarchy; for example, Justice Alito might have used his final sentence to say something like, “A final category, category X, is the most important one of all.”)
So, in sum, understanding rhetorical ontology lets legal writers think about the rhetoric of the “things” we encounter in documents and to imagine those things as having their own persuasive features that pre-exist and guide our interactions with them. With respect to lists in legal writing, rhetorical ontology helps us see that a list’s rhetorical “thingness” includes
• Flattened hierarchy,
• Non-narrative structure,
• Unit (v. holistic) view,
• Juxtaposition, and
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You can reach her at email@example.com.
Tuesday, July 16, 2019
Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy.
When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law.
In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective.
It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion.
Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.
Objective Statement of the Law (First Draft)
[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]
Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”
Persuasive Statement of the Law (Revised Version of First Draft)
[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]
The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.
Checklist of Edits Transforming Objective Into Persuasive
- We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
- We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
- We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
- We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
- In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
- We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.
Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at firstname.lastname@example.org.
Thursday, July 11, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law
Welcome to a new theme for posts on the Appellate Advocacy Blog: Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersect of rhetoric and legal communication. Today we take a behind-the-scenes look at the rhetorical power of the “visual list” in brief writing.
In his excellent post a few weeks ago, professor and blogger Joe Regalia identified the myriad ways to use visuals in briefing, and he pointed out the “visual list” as a persuasive way to present information. He noted that the technique is particularly effective for summarizing information.
The list is perhaps the original visual in brief writing—a writer can construct a list on manual typewriter or even with pen and paper; all one needs is the ability to indent, input text, and separate list items, such as with a number or icon (like a bullet point). But why does a list work as a visual as well as a textual persuasion device? In other words, if a reader never actually reads the text of a list, would the list still persuade? Does the list have rhetorical features as a “thing” unto itself, beyond the words that compose it?
As Professor Regalia’s post suggests, a list has a visual rhetorical effect all its own. A list is effective as visual rhetoric because a list sets off and stacks up information.
1. Lists visually set off information that the writer wants to mark as important.
Lists effectively use white space to set-off information, which shows its importance. Readers, even if they don’t consciously recognize it, use white space as a cue about how to respond to text. For example, think about paragraph breaks; the white space between two paragraphs and an indentation at the beginning of the first line of the second paragraph (which itself is a unit of white space) are cues to the reader that something important is happening—the new paragraph leaves behind the original topic and introduces a different topic. And the reader gets this information simply by skimming a page; the set-off is persuasive even before the reader actually reads the text content. (Try this yourself—take a look at the whole of a page of text—what does the white space say to you?)
The message of white space to set-off text is even more pronounced with lists, particularly when a list is indented from the left margin. When the reader encounters an indented list, the reader gets an immediate cue that something is special about the ideas captured in the list; the white space around it conveys that message. This white space says to the reader “Stop! Look here! This text is different from the rest of the information on this page. It is special, so pay extra attention.” And this cue works to persuade even before the reader engages the list’s content.
2. Lists stack up points of information to visually demonstrate weight or volume.
As a visual rhetorical tool, a list can have the effect of stacking up information to convey the weight or volume of the information presented. Think of a tower of kid’s building blocks. The taller the stack, the more impressive and memorable the tower for its sheer size alone. In the context of brief writing, then, a list can visually convey the strength of a point even before the reader reviews the list’s content. For example, take this list of triggers for using a graphic from Professor Regalia’s article:
• You have data—graphs nearly always make data easier to swallow than writing about the results.
• You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it).
• You have a complex process to discuss—like an agency process, or a factual process that a party carried out.
• To show how a statute, regulation, or any other rule operates in steps.
• Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
• Whenever you can come up with a visual that highlights key evidence or authority.
Now compare Professor Regalia’s same list, presented in paragraph form:
Here are some specific triggers when you might consider using a graphic:. You have data—graphs nearly always make data easier to swallow than writing about the results. You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it). You have a complex process to discuss—like an agency process, or a factual process that a party carried out. To show how a statute, regulation, or any other rule operates in steps. Any time you can use a chart to plot out a decision tree for your reader with the options laid out. Whenever you can come up with a visual that highlights key evidence or authority.
Although the traditional paragraph contains the same information as the list, the paragraph makes less of a visual impact in conveying the number of situations where it would be appropriate for a writer to use a graphic in a brief. In the paragraph, the writer loses the visual impact of the “stacked” list, which, by virtue of the height of the stack, effectively conveys the many opportunities for brief writers to use graphics.
In the context of a brief, a list’s visual effectiveness in stacking up its content can prime the reader to understand the list’s content in the way the writer wants. For example, in Professor Regalia’s list above, the reader who encounters this long list is primed to believe that the circumstances for graphic use are many. In the paragraph format, however, this “stacking” strategy is less effective; it is not as easy for the reader to see, before reading the paragraph in detail, that there are many opportunities for graphic use. (This comparison also suggests that if the writer wants to de-emphasize the weight or volume of information, the reader would not choose a list format and instead keep all of the information in a paragraph.)
If we go one more step and number the list items (i.e., 1., 2., 3., 4.), the list becomes even more visually persuasive because the reader is immediately cued to the size of the stack—six uses of graphics in briefs.
So, what do these two effects—set-off and stack-up—suggest for using lists? Consider formatting information into a list to accomplish these goals:
- To give the reader the visual impression that textual information is uniquely important and should be given special attention; or
- To show the reader—through formatting—that the items in your list are weighty, numerous, or otherwise substantial; or
- To accomplish both.
Kirsten Davis teaches at Stetson University College of Law in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You may contact her at email@example.com.
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Tuesday, July 2, 2019
The record has been compiled. Your research is complete. You stare at notes you scribbled while brainstorming. Now it’s time to write the brief. Where do you start?
Honestly, I never thought much about how to start writing briefs while I was in practice. I tackled each brief from the beginning with the Caption Page. I’d skip over the Table of Contents and Table of Authorities. Then, I wrote each section of the brief in the order it appeared, saving the Summary of Argument until after I finished the Argument section. Finally, I would compile the Table of Contents, the Table of Authorities, and the Certificate of Service. It never occurred to me that there may be a different way.
When I teach brief writing, I encourage students to start writing the most difficult section, the Argument, first. If a student is struggling with writer’s block, I will recommend she begin by writing a few of the “easier” sections, like the Caption Page, Conclusion, and Statement of Jurisdiction, before writing the Argument. These “easier” sections are independent of the arguments in the brief and can be written any time. Ideally, I think writing the Argument first is beneficial for several reasons.
First, the Argument section is arguably the most important part of the brief. I encourage students to spend the bulk of their time developing their arguments and writing them when they are the freshest. When I grade the brief, I spend most of my time in the Argument and I weigh this section the most heavily. My grading practice corresponds to my focus when I worked as an appellate-court law clerk. When I read the parties’ briefs, I always started with the Argument section. I spent most of my brief-reading time engaged with the parties’ arguments.
Second, writing the Argument can take a long time. Even if you begin with a detailed outline of points, the act of writing encourages deeper thinking on the issues. You may uncover an argument you hadn’t considered when you compiled your outline. As you write, you may see gaps in your research and may need to stop writing to find additional authority. Your theory or approach to the case may change as you write. You need time for the arguments to take shape. If you start with the Argument, you give yourself that time.
Third, developing your arguments first may lead to a better overall brief and save you time. The Argument section will likely influence how you write some of the other sections of the brief. You can unify your brief around a common theme, if you understand what your theme is after you have developed your arguments. For example, you may not realize what facts are truly important to your case until you have explored all your arguments. Writing the Argument section before writing the Statement of Facts helps you distinguish between the legally-relevant facts, which should be the foundation of your Statement of Facts, and the irrelevant facts, which should be left out. If you write the Statement of the Issues after you write the Argument section, you can incorporate your theory of the case or some persuasive facts from your arguments. Also, it is easy to highlight your key points in the Summary of Argument if you have fully formed them in your Argument first.
If you write the Statement of Facts, the Statement of the Issues, and the Summary of Argument before writing the Argument, you may have to spend time revising these sections to match the Argument section. Writing the Argument section first, and using it to guide how you write the other sections of your brief, can result in a better overall document written in less time.
Monday, June 24, 2019
Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.
One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.
Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.
For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:
SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
TOP TIPS FOR THE SUMMARY OF ARGUMENT
1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.
Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:
Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.
The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”
These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.
2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.
3. Limit citations. It will bog down the summary.
4. Don’t just restate the point headings. It’s lazy and just taking up space.
5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.
Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.
Tuesday, May 28, 2019
In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.
The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.
This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.
There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:
- Westlaw Profiler
- Ravel Law
- League of Women Voters
- Alliance for Justice (AFJ) Reports on the Judiciary
- The Robing Room
In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.
When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.
If you know of a good resource that I did not list, please let me know.
(Image credit: Gene Elderman, Washington Post, January 7, 1937)
Monday, April 29, 2019
Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too. An appellate attorney and a moot court participant both want to produce a winning brief. But winning is defined differently in moot court. Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.
My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court. I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls. I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.*
We will start at the beginning with Questions Presented and Issue Statements. You know what they say about first impressions. . . It’s absolutely true for briefs. As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog.
From earlier this month, Chris Edwards on framing issues:
Tonya Kowalski’s series on (1) Deep Issue Statements:
(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html
(3) More Objective Deep Issue Statements:
Thomas Burch on which style of Issue Statement/Question Presented is used:
As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs. But it’s helpful to get grounding in how practitioners are framing questions presented.
As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:
Competition 1 - Are the questions posed to frame the issue(s) to be decided in a favorable manner without being
Is there a clear point of view? (5 points out of 100)
Competition 2- Do they clearly and accurately explain the issues before the court?
Are they persuasively phrased? (10 out of 100)
Competition 3- Correctly states issues
Articulates legal questions and includes relevant facts
Does not include legal arguments or conclusions
Succinct and concise (12 points out of 100)
Competition 4- Combine legal principles with key facts
Are persuasive but not conclusory
Are clear and succinct (4 points out of 100)
All of these criteria include persuasion, argumentation, or relevant facts. A neutral short framing would not fully comply. Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring. My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue. Though, I think a short, argumentative question presented with a few key facts could also score well.
Finally, there are a few key errors that will really impact the question presented score on a moot court brief. First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal. That is not the task at hand. Don’t do it. Take the time to frame a well-written issue for the court. It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.
Second, in moot court briefs there are usually two or three separate issues that need questions presented. Try to make them stylistically similar. It’s not cohesive to have one deep issue and one neutral short issue. Yes, this takes time and possibly teamwork. But your questions presented set the tone for the brief. If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief.
Third, on a technical note, do not rely on spell check for ALL CAPS in Word. If you type in ALL CAPS, spell check does not pick up spelling errors. Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS. I see more typos in headings and questions presented than anywhere else because of this. A question presented with spelling errors also sets a poor tone.
Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively. But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.
For those of you involved in moot court, do you have any other suggestions?
* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.
Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Tuesday, April 9, 2019
In a previous post, I introduced the legal-writing toolbox. I described seven resources that make up the “practical” library in my toolbox. In the comments section, several readers shared the top books in their toolboxes too.
Today, I examine some additional tools I use as a writer. Again, I welcome your contributions in the comments section. I look forward to learning more from you.
The inspiration for an argument or article often strikes in the cereal aisle of the grocery store. For years, I thought, “That’s a pretty good idea. I’ll add that to my document tomorrow.” Then, when I sat down to write, I could not remember the epiphany that had befallen me in front of the Cheerios. This happened quite frequently. Now, I carry a small journal and pen with me wherever I go. I capture ideas in my journal as they come.
Electronic Writing Bank
I use Microsoft Word and a PC to write. Throughout the years, I have amassed an electronic collection of my own writing. In practice, I had templates for the various courts in which I practiced. I saved correspondence, pleadings, and “standard” legal language for certain sections of my briefs, like standards of review. As a professor, I have gone back to my storehouse and given my students some of my writing to edit. They enjoy finding mistakes in their teacher’s work.
As a professor, I am still collecting my writing in an electronic bank, keeping it safe and secure. I have developed an organizational system, using electronic folders and file names that allow me to find what I needed quickly. Periodically, I clean out my collection and delete material I no longer need.
I know enough technology to survive in the digital age. I’m sure I do some things the hard way, technologically, but it’s likely the only way I know how. Here are a few of the “tech tools” in my writer’s toolbox, which may or may not be new to you.
First, I remove metadata from my documents before I share them with someone. When you create a file, potentially identifiable information (metadata) is automatically stored in the properties of the file. Metadata includes information about who created the file, who made changes to the document and when, and the changes made. The easiest way I “remove” metadata is by converting my Word document to a PDF. It is my understanding that a viewer cannot mine a PDF document for the same metadata found in a Word document.
When I am collaborating on a Word document, and cannot share it as a PDF, I often strip the document of its metadata before I send it. If you would like instructions on how to remove metadata from a Microsoft Word document, click here.
Second, one feature I appreciate in Word is the ability to link numbers within a document through the cross-reference function. Cross-references link numerical references within a document so that if you change the numbering system, Microsoft Word will update all the linked numbers. I find cross-references to be helpful in linking footnotes in law review articles, provisions in contracts, and paragraphs in pleadings.
For example, if I am drafting a settlement agreement with various numbered paragraphs, some of the numbered provisions will likely reference earlier numbered provisions. If I want to add a numbered provision in the middle of the agreement, all of my numbers after the newly-added provision will have to change. If I change the numbers by hand, I will have to devote several minutes to making the changes and I risk missing a provision and having a mistake in my agreement. To avoid this problem, I use cross-references to link my numbers. Then, when I make a change, the cross-reference function updates the numbered references in a few seconds and the software does not miss any of the numbers, reducing errors. For instructions on how to create cross-references in a document, click here.
Finally, when I don’t know how to do something in Word, I Google it. Individuals far smarter than I have created step-by-step instructions or videos on how to complete tasks that make writing easier in Word. When I search, I describe the task I want to complete along with the version of Microsoft Word that I am using because the instructions may change depending upon the age of my software.
Saturday, April 6, 2019
Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space. I don't know that for sure. But it seems likely given the slapdash way many of those sections are composed.
I'm going to assume everyone knows that this issue statement is no good: Did the trial court err in awarding summary judgment? It is my least favorite issue statement of all time. If you find yourself writing this issue statement; stop. It's not the answer.
What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough. Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:
WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?
There's not a lot of substance to unpack here. I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees. And I know the relevant statute. In that regard, this issue statement does its job just fine.
But it could do so much more. First, it needs more information. Second, it needs some emotional appeal. Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.
Here's some background. The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release. The plaintiff has admitted elsewhere that the release is valid. The trial court concluded the claim was barred and dismissed the case. The plaintiff has appealed.
The defendant's most basic issue statement would read something like this:
Did the trial court correctly dismiss plaintiff's breach of contract claim?
As before, this statement tells the court what's at issue and what the defendant's position is on it. It just doesn't do anything else. To give the court some extra information, the defendant might consider:
Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?
In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue. By noting the release, the defendant also has conveyed the trial court's reasoning. Still, this issue statement is missing something. It tells the court what's going on, but it doesn't persuade. It lacks emotional appeal. For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:
Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?
This statement goes all in. It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right. That is, why the defendant should win.
The question has an important feature that its predecessors lack: its answer is "yes." Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case. It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early. By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on. That's a huge advantage, especially if you're the appellant.
So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.
Monday, April 1, 2019
If you weren't a fan before "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it. As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently. "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."
A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases. I thought well, Justice Ginsburg was once upon a time an attorney with a strategy. Here's the plan; apply it as you see fit.
I. Identify a current law, the prevailing interpretation of which you want to change.
Termination of Parental Rights in Missouri is purely statutory. The statute itself is long, complicated, and detailed. One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape; or (6) the parent is unfit to be a party to the "parent-child relationship." Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence." Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child." Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute.
But in 2016, the Jackson County, Missouri Family Court developed a problem. In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed. In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination. A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed." In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016. In August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice." The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child. A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days. Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney. If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ." No continuances shall be granted "except for compelling cause."
The end result of this new efficient case management system, according to my colleague, is a TPR Factory. Cases are rushed through the court system, and Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child. So, how to fix it?
II. Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.
If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment." However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment." Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.
V. W. spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances. After the child was taken into custody, V.W. never provided any financial support for the child, and the court entered a no-contact order. After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around. Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child. No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless. On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.
We lost that one.
III. Find a case with even better facts and try again.
J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction. He became involved in the case five months before the TPR Petition was filed. Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly. He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated. Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight." The trial court terminated J.C.'s rights.
We filed the brief in that appeal last month. Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights. Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.
What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding. We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking. We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights.
The viewpoint is perhaps idealistic, but the goal feels possibly reachable. Tally-ho.
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).