Monday, October 18, 2021
Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs.
Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable." All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets. The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes.
Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.
So, now for my unpopular opinion--Judges can use (cleaned up) all they want. But attorneys should not unless the court rules expressly allow for it.
I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench. The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh. He wrote:
I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."
If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up. As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.
If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know. And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.
So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).
Saturday, October 16, 2021
Like many, I use “Weird Al” Yankovic’s “Word Crimes” in my legal writing classes. See https://www.youtube.com/watch?v=8Gv0H-vPoDc. In the past few years, I have added a note about not calling each other “morons” when I play the video. Nonetheless, the song and lyrics still have great examples about why we need Oxford commas, correct apostrophes, and other basic punctuation, all to a catchy tune. Often, I pair this discussion with an analysis of the 2018 Maine dairy delivery drivers’ dispute about a missing comma and overtime pay. See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html. I’ve blogged about the Maine case before, as it leads to great teaching discussions. See also Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/ (“For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”).
This month, the District Court of New South Wales in Australia gave us another ruling on punctuation, this time involving defamation and a Facebook post. See https://www.theguardian.com/law/2021/oct/10/missing-apostrophe-in-facebook-post-lands-nsw-real-estate-agent-in-legal-hot-water. As New York Times writer Livia Albeck-Ripka explained in her article on the case, “a missing apostrophe in a Facebook post could cost a real estate agent in Australia tens of thousands of dollars after a court ruled a defamation case against him could proceed.” https://www.nytimes.com/2021/10/11/world/australia/facebook-post-missing-apostrophe-defamation.html#:~:text=Missing%20Apostrophe%20in%20Facebook%20Post%20Lands%20a%20Man%20in%20Defamation,mark%20may%20cost%20him%20thousands.
In his Facebook post, real estate agent Anthony Zadravic appeared to accuse Stuart Gan, his former employer at a real estate agency, of not paying into the Australian government retirement fund for all of the agency’s employees, and not just for one employee. Zadravic’s Facebook post stated:
Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation [for the Australian retirement system]. Shame on you Stuart!!! 2 yrs and still waiting!!!
Id. Gan filed a defamation claim against Zadravic, alleging the Facebook post improperly stated Gan had not paid his contributions for any of his employees, since Zadravic did not use an apostrophe in “employees.”
Although Zadravic explained he meant the singular “employee’s” contributions for his own account, the court refused to dismiss Gan’s case. The court ruled the plural “employees” without an apostrophe could “be read to suggest a ‘systematic pattern of conduct’ by Mr. Gan’s agency rather than an accusation involving one employee.” Id. Thus, the judge allowed the defamation case to move forward.
While there are lower standards for defamation in Australia than in the United States, for example, the punctuation point is well-taken. Just as we teach our students to be cautious in their work texts and avoid imprecise language, emojis, and the like, we should also caution them be careful not only in content, but also in language on social media.
My teen/twenty-something sons will roll their eyes (via emojis, no doubt) at my suggestion we use proper grammar on social media. However, when our students and newer associates are posting about professional matters, they should err on the side of caution. Many employers, in fact, have strict guidelines on social media posts, and using proper punctuation helps ensure compliance.
Thus, whether we use the dairy drivers, “Weird Al’s” YouTube videos, or now the Facebook apostrophe case, we have several fun sources to encourage discussion and create teaching moments on commas, apostrophes, and more.
Tuesday, September 28, 2021
Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.
A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.
Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.
Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.
Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.
Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.
Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.
September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Thursday, September 9, 2021
Thursday's Rhaw Bar: The Objectives and Means of Brief Writing: Who Makes the Rhetorical Choices? Does it Matter?
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
This semester, I’m teaching Professional Responsibility to about 145 second-year law students. We are on the topic of how the ethics rules allocate decision-making between lawyers and clients. The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules. Model Rule 1.2 (a) and Comment 5 provide that
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.
Objectives, Means & The Appellate Brief
Applying this rule to appellate lawyers writing briefs seems straightforward. When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor. An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle. But generally, the client’s objective is to win on appeal.) Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs. In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective. If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.
So, we might conclude that content of the brief is almost always the means and not the objective of representation. In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art. (I wrote about this concept of rhetoric as productive art last month.) If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide. Maybe consultation is required under the ethical rule, but nothing more. (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)
But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief? Maybe, maybe not. Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal. Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.
Raising Issues on Appeal: The Supreme Court’s View in Jones v. Barnes
In 1976, a New York state jury convicted David Barnes of robbery and assault. Michael Melinger was assigned to represent Barnes on appeal. From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal. Barnes also enclosed his own pro se brief.
Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.
In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s. But Melinger also filed with the appeals court Barnes’s pro se brief. Melinger lost the appeal.
In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.
This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”
The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion. Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow out weaker arguments on appeal and focus on . . . at most a few key issues.” A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal, and the lawyer should be the one to choose which of the “few major points” should be raised. The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”
In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.”
In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.” But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”
Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment. At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly, the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice. Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.
Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff. Brennan said: “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.] If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.
Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs
So, what then, do we have here?
Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives. The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible. Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.
The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants: constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so. (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result. The ethics, then, are perhaps not so clear.) For civil appellate lawyers, on the other hand, the implications of Jones are indirect but interesting. The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.
Is brief writing a mean or an objective?
On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief. It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives. Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade.
But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means. One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation. In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important. Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen. Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.
Are legal issues created or identified?
Another question Jones raises is the nature of “issue identification” as a rhetorical (i.e., persuasive) act. That is, do lawyers create issues for argument or do they find them? In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger. But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.
But, on the other hand, even issue identification is a rhetorical act. Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs. Artistic proofs, Aristotle said, are created by the rhetor. An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data. So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)
Which rhetorical choices are means? Which ones are objectives?
Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which? For example, an appellate brief should have a theme. If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean? How about metaphors? How about references to history or popular culture that help make a point? All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client? Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?
Does the appellate lawyer’s professional expertise in legal rhetoric matter?
And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important? Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer. Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing. If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases? If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter? And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.
Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law. Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised. And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair. This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.
That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices. In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.
What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Tuesday, September 7, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.
Do provide appropriate signposts:
- Do consider using headings and summaries.
- Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.
The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next
1. Point headings make our writing better.
Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.
A. Point headings are topic sentences.
Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.
B. Point headings should be full sentences.
Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better
1. Strict Scrutiny.
2. The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.
The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.
C. Point heading should look like sentences.
Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.
D. Point headings are not just for the argument section.
Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:
1. In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.
The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.
E. Point headings serve as a check on your analysis.
If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.
F. Good point headings start with a good outline.
The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.
G. You should include point headings in your Table of Contents.
Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:
Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.
2. Summaries make our writing better.
Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.
After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.
3. Transitions make your writing easier to follow.
A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.
Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.
September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)
Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.
Saturday, August 7, 2021
In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”
Well, guess what?
Sometimes, neither the law nor the facts support your argument.
In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.
So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:
You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.
After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.
As the attorney representing the congressman, you obviously have an uphill battle.
Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.
The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.
So, what can you do to make this ‘bad’ argument as persuasive as possible?
1. Create a nuanced argument that renders governing precedent less controlling
When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.
Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.
Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?
Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.
This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.
Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.
2. Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument
When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.
Below are a few examples relating to the above hypothetical:
So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?
So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?
So, the court’s interpretation of ‘reckless’ means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?
These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.
3. Forget the straw man – attack and undermine your opponent’s best argument
Never, never, never avoid the elephant in the room. And never make a straw man argument.
Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.
4. Use quantitative and qualitative data to maximize the persuasive value of your argument
Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:
In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.
Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.
5. If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say
When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.
Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:
So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?
Uh oh. I wouldn’t want to be that attorney.
So, what should you do?
Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:
I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.
Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.
6. Argue with emotion and confidence
Perception matters. Confidence and passion matter. Especially when you are the underdog.
When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious. When you exhibit confidence and passion (and make a well-structured argument), you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.
7. Appeal to the court’s sense of fairness and justice
Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.
Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.
Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.
Thursday, August 5, 2021
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
The Rhaw Bar Is Back
The Rhaw Bar is back from its long hiatus. Thanks to the Appellate Advocacy Blog for allowing me to return. Once a month, we’ll savor a little bite of rhetoric and law. I hope you’ll share your thoughts, too, in the comments, and let me know what law and rhetoric topics you’d like me to write about in future posts.
This Month’s Topic: What is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?
Rhetoric and rhetorical skills are a topic of interest for lawyers. But, what are we really talking about when we talk about rhetoric?
Look at these titles for the different ways rhetoric is used:
- A Bar Magazine: 5 Persuasive Rhetorical Techniques
- A Law Review Article: Significant Steps or Empty Rhetoric? Current Efforts by the United States to Combat Sexual Trafficking near Military Bases
- A Book Chapter: A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
- An Article by a Rhetoric Scholar: Critical Legal Rhetorics: The Theory and Practice of Law in the Post- Modern World
What’s going on here? Does “rhetoric” mean the same thing in every title? Not really. Instead, the titles provide four ways for understanding rhetoric in relation to the law and legal practice.
Rhetoric Is a Set of Strategies for Producing Arguments. The first title, 5 Persuasive Rhetorical Techniques points us toward a definition of rhetoric as productive art, as a means of producing persuasive arguments. In other words, rhetoric is the way in which we use language (or symbols) to persuade others to adopt a perspective (e.g., the First Amendment does not apply in this case) or to take a desired action (e.g., affirm the trial court). When we think of rhetoric in this sense, the focus is on how we will persuade audiences through our messages. How to use rhetorical techniques like deductive and inductive reasoning, stylistic devices, analogy, and metaphor fall into this category. How to invent arguments falls into this category, too. Rhetorical scholar Gerald Hauser’s definition puts an even finer point on this we he describes rhetoric as a way of doing something with words: “Rhetoric,” he says, “is an instrumental use of language. One person engages another person in exchange of symbols that accomplish some goal.”
Rhetoric Is a Deceitful Way of Communicating. The law review article Empty Rhetoric draws attention to rhetoric as words that are false, deceptive, misleading, or disingenuous. Enlightenment philosopher John Locke, for example, called rhetoric “that powerful instrument of error and deceit.” Two millennia prior to Locke, Plato was equally skeptical of “false” rhetoric, calling it “cookery” or “flattery.” The law review title is an apt example of the “rhetoric as false” definition: The Navy says it’s eliminating sex trafficking, but is it? Do its words mean anything at all? Are the words disconnected from reality?
This interpretation of rhetoric is common—we hear about the false rhetoric of one politician or another all the time. Central to this meaning is that rhetoric has no (or very little) role in producing truth; instead, rhetoric leads us away from the truth. That is, those who use rhetoric must be misleading the audience, seeking to convince others in a way that is inconsistent with reality. (Below, you’ll see I reject this idea.)
“Legal Rhetoric” Is a Particular Kind of Rhetoric. The title, A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, directs us to the idea that law is not only produced by rhetoric, but is a rhetoric itself. In other words, law is a discipline that uses language in a particular way to accomplish particular ends; it has its own discourse commitments.
Legal scholar James Boyd White famously said this about the law: “[Law is a] branch of rhetoric . . .by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject.” (Read White’s article here.) In other words, if law is continuous with rhetoric, then law is a rhetoric: a way of describing, categorizing, understanding and knowing the world through discipline-specific rhetorical commitments. Other rhetorics exist, too. For example, the rhetoric of science is a well-studied subject in which scholars look for the rhetorical commitments of scientific discourse.
Legal Scholar Gerald Wetlaufer, in his article, Rhetoric and Its Denial in Legal Discourse, argues that law as a rhetoric includes
commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts. Finally, the rhetoric of our discipline reveals our commitment to a particular conception of the rule of law.
Wetlaufer suggests that understanding the rhetoric of law as a rhetoric can help us understand the advantages and shortcomings of that rhetoric. In other words, by recognizing that the law “speaks” in a particular way, we can carefully look at the implications of that way to our understandings of justice, power, lawyers’ reputation, argument, and the rule of law. To get a better sense of law as a set of rhetorical commitments, I recommend Wetlaufer’s article as well as A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, by Jack Balkin, which suggests that law can be understood as a rhetorical “topics.” (You can decide if you agree with either of them.)
Rhetoric Is a Theory and Method for Analysis and Critique. The last title, Critical Legal Rhetorics: The Theory and Practice of Law in the Post- Modern World, draws attention to rhetoric as a theory and method for analyzing and critiquing legal discourse. Thinking about rhetoric in this way means thinking like a contemporary rhetoric scholar—using rhetoric to study, explain, theorize, and criticize symbol use. In this context, for example, judicial opinions, statutes, and other legal documents become artifacts for study-- critics apply rhetorical theory and use rhetorical methods to gain insight into the ways in which the discourse works.
Beyond its title alone, Critical Legal Rhetorics is an example of this way of thinking about rhetoric. Rhetoric scholar Marouf Hasian argues that not only do we need more rhetorical critique of Supreme Court opinions for their political and contradictory features, but also that rhetorical critics need to examine the discourse of less powerful others whose rhetoric is not recorded in the judicial record. He calls this a “critical legal rhetoric” approach. Hasian says that by situating official legal discourses in the larger public sphere of argument, we can better understand how rhetorical choices impact fundamental rights. Hasian’s article is just one example of how rhetorical theory and method can be developed to analyze legal texts. (If you want to better understand the basics of rhetorical criticism, here’s a great book for novices.)
So why should appellate advocates care about these four meanings of rhetoric?
The work of appellate advocacy is centered on reading and writing legal arguments, and rhetoric is, perhaps above all else, a particular kind of sensibility in reading and writing. Developing a rhetorical sensibility can enable appellate lawyers to have a more nuanced approach to reading and writing.
First, and probably most obviously, appellate lawyers can write more effective legal arguments if they understand rhetoric as the strategies and tactics of persuasion. That is, by learning rhetoric, we can learn more about how to write arguments.
And second, but perhaps not as obviously, if appellate lawyers understand law as a rhetoric that can be critiqued with rhetorical theory and methods, then they can be more sophisticated readers of the law, improving their abilities to “see” and critique legal argument. In addition, appellate lawyers might also be more attuned to the law’s relationship to justice. Remember what White said? Law is a rhetoric with “justice as its ultimate subject.” I think, as an ethical matter, appellate lawyers should better understand that connection between law, rhetoric, and justice, and reading law as a rhetoric can help develop that understanding. (If you want to read more, I’ve written here about the connection between the lawyer’s skill of rhetorical criticism and the lawyer’s special responsibility for justice.)
Finally, what about the meaning of rhetoric as empty or false? I suggest that as lawyers, we reject the idea of “empty rhetoric” and instead consider as more accurate the idea that lawyers produce rhetorical knowledge. Rhetorical knowledge is not false; it is a way of knowing the world through the enterprise of argument. As legal scholar Jay Mootz suggests, rhetorical knowledge is generated through legal practice and is relevant to the historical contingencies, controversies, and communities of the human condition. Mootz convincingly argues that for centuries, we have neglected “the unavoidable role of rhetorical persuasion in legal meaning . . . . [W]e should return to a conception of legal meaning as rhetorical knowledge.” I think he’s right.
What have I missed in my definitions of rhetoric as they relate to the law? What do you think about appellate lawyers being rhetorical critics? Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Sunday, August 1, 2021
Judges have considerable freedom to write opinions as they like. They write for a broad audience. A judicial opinion speaks not just to the case’s lawyers and their clients, but to other judges, the legal academy, and perhaps, most importantly, the lay public. Even though most judicial opinions will not penetrate the public consciousness, the decision in a case should seek to demonstrate the elements we associate with thoughtful and considered judging. Still, in a world where social media champions the clever turn of phrase and even the burning insult, readers should not be surprised when judges adopt a vernacular not often associated with legal writing.
Some subject matters will not open the door to that type of accessible writing. Justice Elena Kagan once announced the opinion of the Court on a rather dry issue concerning the Anti-Injunction Act with: “If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.” On the other hand, as an inveterate comic book superhero enthusiast, Kagan could not resist throwing in a gratuitous line in a patent infringement case involving “Spider-man”: “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)” and citing an issue of the comic book as authority elsewhere in the opinion.
Indeed, her late colleague, Justice Antonin Scalia, is remembered as much for his pointed barbs and colorful jargon as he is for his dedication to a form of originalism in interpreting the Constitution. For example, lamenting the much-criticized Establishment Clause test from Lemon v. Kurtzman, Scalia memorably described its usage after a long period in hybernation as being “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, . . . frightening the little children and school attorneys of [defendant school district].”
Yet, the same reasons that cause some of us to remember that opinion prompted University of Wisconsin law professor Nina Varsava to write that judicial writing that turns opinions into a “compelling and memorable narratives” ill serves the “integrity of the judicial role and the legitimacy of the adjudicative process” in a forthcoming law review article. Professor Varsava recognizes that commentators love a lively and engaging style that seems to burnish the judicial reputations of those who write in a striking style all their own. Nonetheless, she advocates a more “even-keeled and restrained institutional style.” She rationalizes this plea by critiquing more stylistic writing as “ethically dubious” because it undermines a judge’s “most fundamental professional responsibilities.” To Professor Varsava, judicial opinions are not in the persuasion business, but instead serve a more pedagogical purpose.
Tellingly, Professor Varsava disagrees with Justice Kagan, who has said that “[t]here’s no rule against fun in [opinions].” The professor argues that “perhaps there should be such a rule.” Indeed, Professor Varsava imagines that judges could be constrained by enforceable regulations in the form of “internal court rules, rules of judicial conduct, or even statutory requirements.”
However interesting Professor Varsava’s take on opinion-writing is, and there is great reason to believe that enforcing it through rules or statutes is a dog that won’t hunt, to use a phrase the professor would surely reject, does her plea for more balanced and straightforward writing hold any value for the appellate advocate?
Unlike a judicial opinion, a brief targets a very specific and limited audience: the panel of judges who will decide the case. In many instances, the panel of judges who will hear the case is often unknown until after briefing is complete and suggests a certain amount of caution. Rhetorical flourishes and witty allusions may make for good reading, but can also detract from the persuasiveness of an otherwise well-founded argument. It may well put off a judge who equates the infusion of colloquial speech into the brief as disrespectful or an attempt to lend cover to a weak case.
To be sure, unlike Professor Varsava’s view of judicial opinions, briefs are written to persuade. To hammer home a point and perhaps make it more memorable, an occasional flashy phrasing or telling metaphor can serve a highly useful purpose. Still, there are limits that lawyers must recognize in an exercise of professional judgment.
Even so, judicial rhetoric can provide some license for flights of fancy in briefs. A Brandeis, writing a judicial opinion, might usefully explain why irrational fears cannot justify the suppression of speech by stating that “[m]en feared witches and burnt women,” but it is difficult to imagine how those words could have been made in a brief – except by quoting and citing the Brandeis opinion.
 Kimble v. Marvel Ent., LLC, 576 U.S. 446, 450 (2015) (emphasis added).
 Id. at 465 (“Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider–Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”)).
 403 U.S. 602 (1971).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).
 Nina Varsava, Professional Irresponsibility and Judicial Opinions, __ Hous. L. Rev. __ (forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.
 Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).
Tuesday, July 27, 2021
Professionalism in Legal Writing – Dos & Don’ts, Part IV
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.
Do adopt a clear and persuasive style:
- Do put material facts in context.
The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.
Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:
The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).
The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.
- Do write in a professional and dignified manner.
Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.
I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.
- Do put citations at the end of a sentence.
We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.
- Do use pinpoint citations when they would be helpful.
They’re always helpful.
 Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/
Saturday, July 24, 2021
The writing process consists of three phases: (1) the first draft; (2) the rewriting stage; and (3) the line and copy edit. This article focuses on line and copy editing, which involves reviewing your writing for, among other things, conciseness, clarity, word choice, repetition, and persuasive value. Below are tips to ensure that you can line and copy edit effectively for briefs and other legal documents.
1. Make your sentences concise
Long and wordy sentences are the enemies of effective and persuasive writing. Focus on getting to the point in as few words as possible. Use simple words. Be clear and straightforward. Consider this example:
The issue in this case is whether the Second Amendment protects an individual right to bear arms. We contend that it does.
This sentence is far too wordy. Instead of the above statement, simply say:
The Second Amendment protects an individual right to bear arms.
Likewise, consider this example:
The issue to be decided by the court is whether the Fourteenth Amendment to the United States Constitution, which unquestionably and unmistakably protects substantive liberty interests pursuant to the substantive due process doctrine, encompasses within its reach the fundamental and thus basic right to terminate a pregnancy. The answer is certainly yes.
Wow. What an awful, fifty-two word sentence. Instead of this nonsense, simply say:
The Fourteenth Amendment’s liberty guarantee supports a woman’s right to terminate a pregnancy.
That sentence is thirteen words, and it says the same thing.
Remember that judges can easily recognize bad writing, and the failure to communicate concisely is a classic sign of bad writing.
2. Focus on coherence and flow
Make sure that your paragraphs are coherent and flow effectively. In so doing, remember that paragraphs should never occupy an entire page. They should begin with a concise sentence and focus on a single point, such as an element of a cause of action. Consider, for example, a negligence lawsuit, which requires a plaintiff to show that a defendant: (1) owed a duty; (2) breached that duty; (3) directly and proximately caused injury; and (4) caused legally compensable damages. With this in mind, consider the following statement:
The defendant was negligent in treating the plaintiff’s back injury. The defendant, as a doctor and certified surgeon specializing in back injuries, owed a duty to the plaintiff to exercise a degree of care that was consistent with doctors of similar quality and experience. But the defendant breached this duty when he failed to operate on the correct area of the plaintiff’s spine. And this breach was contrary to and inconsistent with the conduct of similarly situated professionals in the medical industry. Moreover, the defendant’s conduct was the direct and proximate cause of the plaintiff’s injury. First, but for the defendant’s conduct, the plaintiff would never have suffered any injuries whatsoever. Second, the defendant’s conduct proximately caused the plaintiff’s injuries. Most importantly, the plaintiff suffered legally compensable injuries that should result in a verdict in plaintiff’s favor.
This paragraph is utter nonsense. It includes all four elements of negligence in a single paragraph without even attempting to explain in sufficient depth why the plaintiff’s case satisfies these elements. The better approach is to discuss each element in four separate and concise paragraphs.
3. Keep the reader’s attention
When does writing fail to keep the reader’s attention? When you write long sentences. When you write long paragraphs. When you use fancy or esoteric words. When you repeat yourself. When you tell, but don’t show. When your writing is simply boring. Consider the following example:
The defendant assaulted and severely injured the plaintiff in a most invidious and insidious manner. To be clear, the defendant assaulted the plaintiff in a most egregious manner because the plaintiff trusted the defendant and because the defendant represented to the plaintiff that he was a trusted friend and because the defendant told the plaintiff that he would always be a loyal and trusted friend, which is a representation upon which the plaintiff relief and did so to his detriment, as the complaint alleges. Also, the duplicitous behavior of the defendant showed that his purported loyalty was evanescent in nature and execrable in design.
This paragraph is worse than the Friday the 13th movies. Instead of this ridiculous statement, begin with a powerful opening sentence. Use short sentences. Include specific and vivid details that tell a compelling story and that engage the reader logically and emotionally.
4. Eliminate filler words
Sentences should include only necessary and purposeful words. As such, eliminate words like “just,” “very,” and “really.” Consider the following example:
My settlement offer should really be considered by your client.
Your client should consider my settlement offer.
The second example eliminates the filler words. It gets to the point quickly and directly.
5. Don’t repeat words
If you repeat words, it suggests that you didn’t take the time to edit your brief and it makes your writing seem contrived. Consider the following example:
The defendant’s conduct exacerbated the plaintiff’s injuries. These injuries were severe and, due to being exacerbated by the defendant’s conduct, continue to affect the plaintiff’s health. Indeed, the defendant’s conduct, which as stated above, exacerbated the plaintiff’s injuries, is negligent as a matter of law.
Unfortunately, instead of focusing on the substance of your argument, the reader is likely to wonder why you used the word “exacerbate” three times. To avoid this problem, get a thesaurus.
6. Don’t suggest unintended meanings or biases
Your word choice is the vehicle by which you convey meaning. Thus, be careful not to use words that may imply that you harbor prejudices or biases. Consider the following example:
The defendant was mentally retarded and should be held incompetent to stand trial.
Yeah, that’s not good. Instead, say:
The defendant was intellectually disabled and should be held incompetent to stand trial.
Remember to always write with sensitivity and objectivity. If your writing reveals underlying prejudices or biases, you – and your argument – will lack credibility.
7. Avoid words that convey uncertainty or equivocation
Your writing should be powerful and unequivocal because it shows that you believe in your argument. For example, don’t say this:
The court’s decision seems to be based on reasoning that is inconsistent with precedent.
Whatever. Imagine if a man proposed marriage to a woman, and the woman said in response, “I think so,” or “This seems like what I want.” They probably wouldn’t be tying the knot anytime soon – or ever. Instead, say:
The court’s decision is based on reasoning that is inconsistent with precedent.
The latter sentence is direct and declarative, and thus more persuasive.
8. Eliminate cliches
When you include cliches in your writing, it suggests that you are unoriginal and that you didn’t spend much time revising and perfecting your work product. For example, don’t say this:
My client, a professional boxer, wasn’t going to quit the fight until, as they say, “the fat lady sings.”
That sentence is terrible. Instead, say:
My client is a professional boxer who refused to quit and fought with his heart for every round of the fight.
This statement might make the reader envision the Rocky movies. It might also demonstrate that you are thinking for yourself and not relying on stale and tired phrases to support your argument. When you do that, your sentences will be original, relatable, and memorable.
9. Know what your words mean
Don’t use words that you misunderstand or don’t understand. Consider this example:
The law’s affects will suppress citizens’ First Amendment rights.
Don’t make such a foolish mistake. Instead, say:
The law’s effects will suppress citizens’ First Amendment rights.
And be sure not to reveal that you simply don’t understand the meaning of a word. Consider this example:
The invidious weather caused the plane crash.
The inclement weather caused the plane crash.
The first sentence would make the reader question the writer’s credibility – for good reason.
10. Lose the adverbs
Great attorneys know how to use the facts and the law to craft a compelling story that shows, not tells, a court why it should rule in their favor. To that end, they minimize, if not eliminate, adverbs. Indeed, adverbs describe what happened, but they don’t capture the moment. Consider the following examples:
The party was extremely loud.
The party was deafening.
The defendant was extraordinarily tired.
The defendant was exhausted.
The difference should be obvious: “deafening” is more powerful than “extremely loud,” and “exhausted” is more powerful than “extraordinarily tired.”
11. Lose the adjectives
Like adverbs, adjectives describe what happened, but they don’t capture the moment. Consider the following example:
The plaintiff’s journey to seek justice for her deceased daughter in this court has been really long and arduous.
Who cares? Law school exams are long and arduous. The bar exam is long and arduous. Relationships are long and arduous. And one’s belief in what is “long and arduous” is subjective. Put simply, nothing in the above statement connects with the reader in a relatable and compelling manner. Consider this example:
The plaintiff has waited patiently for three years, seven months, and twenty-eight days to obtain justice for her deceased daughter.
The second example is more powerful because it includes specific details. In so doing, it more effectively places the reader in the plaintiff’s shoes and enables the reader to relate to the plaintiff’s struggle.
12. Think differently about active versus passive voice
The conventional wisdom is that writers should use the active voice and avoid the passive voice. That’s not always true. You should use the passive voice, for example, when de-emphasizing unfavorable facts.
Consider a case in which your client made allegedly defamatory statements about a public official, but contended that he or she believed those statements were true. Which of the following statements would you prefer?
The defendant admittedly made potentially defamatory statements about the plaintiff, but he contends that they are true.
The alleged defamatory statements, which were made by the defendant, are true.
The second example is better because it de-emphasizes the unfavorable fact, namely, that the defendant made the statements, and it maintains the focus on the argument that the statements were true.
12. Good judgment leads to good writing
Legal writing is not a mechanical task in which you robotically apply a set of techniques to create a persuasive argument. Rather, you have to exercise good judgment – and common sense – when drafting briefs or other legal documents. This includes, but is not limited to, choosing specific words that enhance your brief’s persuasive value, varying the length of your sentences, choosing a compelling theme, deciding which facts to emphasize, and determining how to address effectively unfavorable facts and law. Thus, never approach legal writing as a mechanical or formulaic endeavor; understand that the quality of your judgment and common sense will impact substantially your brief’s quality and persuasiveness.
Ultimately, how you say something is equally, if not more, important than what you say. For law students, the message should be clear: the quality of your writing and communication skills largely determines whether you will be successful in the legal profession.
Wednesday, July 21, 2021
Justice Cardozo once said that as many as 9 out of 10 legal issues can be resolved by deduction alone. The most useful form of legal deduction is the syllogism, which generally has two premises and a conclusion.
Crack open any book on syllogisms and the author will lead with something like this: All men are mortal; Socrates is a man; thus, Socrates is mortal. This is a categorical syllogism, which is by far the most common in the law. A categorical syllogism sets up a broad proposition (all/some/no X are Y), gives an example (all/some/no of group A are X), then concludes that what is universally true must be true in a particular instance of that universal (all/some/none of group A is X). Convincingly using categorical syllogisms in legal analysis is a matter of hitting on the relevant aspects that characterize a class, then showing that your case does or does not fit in that class.
Most appellate arguments and cases can be reduced to syllogisms. As an exercise, take any United States Supreme Court case and try to reduce it to three sentences—a general proposition, a few specific facts showing that this case fits within (or without) that class, then a conclusion that what is true of the class in general is true (or not) of this case. Marbury v. Madison: the Constitution is supreme over laws passed under it; the Judiciary Act of 1789 conflicts with Article III of the Constitution by adding to the Supreme Court’s original jurisdiction; therefore, that part of the Judiciary Act conflicting with Article III is void. McCullough v. Maryland: The federal government is supreme over the state governments; if the states could tax the federal government, they would be supreme over it; therefore, the states cannot tax the federal government. Wickard v. Filburn: Congress has the power to regulate both interstate commerce and things affecting interstate commerce; growing one’s own wheat on a farm for personal consumption affects the interstate market for wheat; therefore, Congress can regulate growing one’s own food for personal consumption.
Courts often reduce counsels’ arguments to syllogisms to zero in on points of disagreement. In Blasland, Bouck & Lee v. City of North Miami, North Miami had sued a contractor (Blasland) that it had hired to clean up a Superfund site, believing that the cleanup did not meet federal standards. In a previous lawsuit involving the same site, it had gotten a favorable judgment against other defendants who had met federal standards in their cleanup efforts. The court later offset a judgment against Blasland with the prior judgment, reasoning that North Miami’s recovery would otherwise be duplicative. North Miami appealed, saying that the setoff was improper. The Eleventh Circuit broke down the City’s argument into a series of syllogisms—simplified here—to explain precisely where it believed that the City’s reasoning went awry: 1. Duplicative awards justifying an offset exist only if the recovery in the second suit was available in the first suit; 2. The claim against Blasland was not available in the first suit; 3. Therefore, the award against Blasland was not duplicative and it is not entitled to an offset. The Court held that this argument was a “fine syllogism, with flawlessly connected episyllogisms, but its initial premise is flawed. The flawed premise is that . . . duplication of awards only exists if what has been awarded in the present case rightfully could have been recovered in the prior litigation. That is not [the] law.”
The best attorneys often use syllogisms to the same effect. To illustrate, I looked at briefs from prominent practitioners in the U.S. Supreme Court in 2019 and 2020. For example, Kannon Shanmugam of Paul, Weiss, used it in a petition for certiorari review in C.H. Robinson Worldwide, Inc. v. Miller, 20-1425 (with citations removed to aid readability):
What is more, the court of appeals badly misconstrued this Court's decision in American Trucking Associations, Inc. v. City of Los Angeles. The court's attenuated chain of reasoning went like this: In American Trucking Associations, the Court stated that the FAAAA's preemption provision “draws a rough line between a government's exercise of regulatory authority and its own contract-based participation in a market.” The FAAAA's preemption provision includes common-law claims. Thus, because Congress also used the term “regulatory authority” in the safety exception, it must also include common-law claims.
He then used that syllogistic framework to attack that reasoning:
That syllogism is multiply flawed. As a preliminary matter, the Court in American Trucking Associations was not interpreting the safety exception-indeed, its only mention of the safety exception was to deem it “not relevant here.” If anything, any hints from American Trucking Associations cut the other way. The governmental action at issue there was a core exercise of the “regulatory authority of a State”: the “Board of Harbor Commissioners” (an administrative agency) enforced a “municipal ordinance” (a positive-law enactment), the violation of which was “a violation of criminal law” (enforced by state or local officials). It is little wonder that the Court described the governmental action there as “regulatory authority.”
Two former members of my office—Tyler Green and Tera Peterson—used it to good effect in an amicus brief supporting Arizona in McKinney v. Arizona, 589 U.S. ____ (2020):
McKinney's argument can be succinctly stated as this syllogism:
- New rules (like Ring) apply to cases on direct review.
- His case is again on direct review because the Arizona Supreme Court's actions after the Ninth Circuit's conditional grant of habeas relief reopened his twenty-year-final judgment.
- Therefore, Ring's new rule applies to his case.
The minor premise in McKinney’s syllogism is invalid. So his conclusion is invalid too. The Arizona Supreme Court did not reopen his case—or transform his final sentence into a non-final one—by correcting a non-Ring error. Concluding otherwise would gut Teague’s finality framework, which protects the States’ criminal judgments from unwarranted federal intrusion. It would make those judgments perpetually subject to reopening: Every conditional habeas grant would force States to relitigate convictions under every new procedural rule decided since the original conviction became final.
Finally, Jeff Fisher of Stanford University included this in his winning brief in Ramos v. Louisiana, 590 U.S. ___ (2020) (again, with citations removed):
For decades, this Court has addressed questions like the one here by asking whether the Fourteenth Amendment's Due Process Clause “incorporates” the relevant protection of the Bill of Rights. Applying that test, a simple syllogism establishes that the Due Process Clause incorporates the Sixth Amendment's unanimity requirement against the states. First, the Court held long ago that the Jury Trial Clause applies to the states. The Clause is “fundamental to the American scheme of justice.” Second, “if a Bill of Rights protection is incorporated, there is no daylight between the federal and state conduct it prohibits or requires.” This Court first crystallized this concept in Malloy v. Hogan. . . . The Court reiterated this concept in McDonald. . . . Just last Term, this Court reaffirmed this rule without a dissenting vote. . . . .This reasoning controls here.
I could go on. That’s just a sampling of prominent practitioners in the span of a single year. But it makes the point. The syllogism is a powerful tool that each attorney should use not just to think through cases, but to explain their and others’ reasoning.
 Judge Aldisert agrees. Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 2, 12.
 Syllogisms can be complex, with one conclusion becoming a premise in the next, as a stacked set leads (eventually) to the desired conclusion. These are called polysyllogisms and episyllogisms. More often, they are simplified by implying rather than spelling out one of the premises. These are called enthymemes. See, e.g., Fulton v. City of Philadelphia, (2021) (Gorsuch, J., concurring).
 Syllogisms can also be hypothetical or disjunctive. A hypothetical syllogism consists of at least one conditional (if-then) premise that necessarily leads to the conclusion (if X then Y; X; therefore, Y; or if X then Y, if Y then Z, therefore if X then Z). Id. at 34. And a disjunctive syllogism sets up two options (either X or Y), says which one attains (X), then concludes that the other is not (therefore, not Y). Patrick J. Hurley, A Concise Introduction to Logic 34 (10th ed. 2007).
 Id.; Aldisert, Logic for Law Students, 69 U. Pitt. L. Rev. at 4 (describing syllogistic logic as “[w]hat is true of the universal is true of the particular.”).
 Judge Aldisert advocates for this exercise and gives several examples. Logic for Law Students, 69 U. Pitt. L. Rev. at 4.
 283 F.3d 1286 (11th Cir. 2002).
 Id. at 1295-96.
 Id. at 1296.
Saturday, July 10, 2021
Excellent writers know how to write for their audience, not for themselves.
Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.
What criteria would you use to identify the most persuasive appellate briefs?
The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.
Below are five writing tips to maximize the persuasive value of your brief.
1. Use plain language
[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”
Justice Antonin Scalia
When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.
Consider the following example:
As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.
If you were a justice, how would you react to reading this nonsense?
Consider the next example:
The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.
It should be obvious that the second example, although far from perfect, is better than the first.
Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.
2. Be concise
Most people don't like others who talk too much. Judges are no different.
If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.
Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.
Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.
3. Capture the court’s attention
Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.
Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:
This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.
That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:
On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.
Again, it should be obvious why the second example is better.
An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency. All law students should read this brief.
4. Confront the weaknesses in your case and explain why they do not affect the outcome you seek
No one likes a person who is dishonest or evasive.
Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority. And they explain why those weaknesses do not affect the outcome that they seek.
Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.
5. Don’t make ‘red flag’ mistakes
When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:
- Spelling and grammatical errors
- Long sentences (i.e., over twenty-five words)
- Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
- Extremely long paragraphs (a paragraph should never occupy an entire page)
- Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
- Demeaning the lower court or your adversary
- Failing to follow the local court rules
- Including too many block quotes
- Citing overruled authority
- Failing to cite unfavorable authority
- Misrepresenting the record
- Citing legal authority incorrectly
- Requesting a remedy that the court has no power to grant
- Telling the court what it must do, rather than respectfully requesting what it should do
Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.
Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.
Simply put, great writers make great advocates.
Friday, July 2, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court News and Opinions:
It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.
On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes. More from Bloomberg.
Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.
Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures. More from Bloomberg.
Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim. More from Courthouse News.
On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.
Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state. More from Scotusblog.
Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention. More from Bloomberg.
On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act. The ruling will make it more difficult to contest state-imposed election regulations. More from Scotusblog.
Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors. More from Scotusblog.
On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win. More from Bloomberg.
In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now. See the piece at Law.com.
Federal Appellate Court News and Opinions:
This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional. More from Law360.
Appellate Practice Tips and Pointers:
Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.
Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.
The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022. Application information HERE.
Tuesday, June 29, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the third post in the series.
Do present an honest, accurate position:
- Do include all relevant facts.
Appellate counsel must provide the court all the facts that are relevant to the issues raised in the appeal—yes, even the bad facts. Of course, we want to use word choice, sentence structure, and other techniques to deemphasize the facts that are unfavorable to our client and highlight those that are favorable. And while appellant’s counsel might be tempted to save those “bad” facts for a reply brief—don’t. First, we have an ethical obligation to provide the court all of the relevant facts. Second, it is better to present those “bad” facts first and in the way that is best for our client than to have opposing counsel bring them out first. Finally, disclosing the “bad” facts may enhance our credibility with the court.
- Do cite the record accurately.
The Federal Rules of Appellate Procedure require the appellant’s brief to contain “a concise statement of the case setting out the facts relevant to the issues submitted for review . . . with appropriate references to the record (see Rule 28(e).” Rule 28(e) provides:
References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:
Answer p. 7;
Motion for Judgment p. 2;
Transcript p. 231.
Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
Accurate record cites are important. They allow the court to confirm the accuracy of our representation of the facts, which again, allows us to build credibility with the court. Accurate record cites also allow the court to confirm that we preserved for appeal the issues we raise. Failure to include record cites may result in sanctions.
- Do disclose relevant authority, including adverse controlling authority.
Of course, we’re going to disclose relevant authority that supports our arguments. But what do we do about unfavorable authority that doesn’t control? (We’ll discuss controlling adverse authority in a minute.) If our opponent is likely to cite the unfavorable authority, or the court is likely to discover it, then I think the best approach is to disclose it and find a way to distinguish it. Just as with “bad” facts, disclosing adverse authority allows us to shape how the court views that authority.
We have an ethical duty to disclose adverse controlling authority. For example, the Model Rules of Professional Conduct provide, “A lawyer shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Counsel ignored controlling precedent in Gonzalez-Servin v. Ford Motor Co., which led to an interesting set of photographs in the Federal Reporter. After noting counsels’ failure to disclose controlling adverse authority, the court wrote:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The “ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless.”
The court then included these images in its opinion:
- Do update all cited authorities and exclude any reversed or overruled cases.
Modern research tools make “Shepardizing” authorities a relatively simple task—far less laborious than for those of us who learned using books. But, we can’t just rely on the flags or signals that appear on your screen. We must read the authorities to ensure the flag or signal is accurate for the point upon which we wanted to rely.
An honest, accurate writing style builds credibility and makes our reader’s job easier.
 Fed. R. App. P. 28(a)(6).
 Fed. R. App. P. 28(e).
 E.g. Dennis v. Intl. Paper Co., 58 F.3d 636 (5th Cir. 1995) (“Dennis's brief does not comply with this rule. We are satisfied, based upon the evident carelessness in which Dennis's attorney has presented this appeal and its obvious deficiency on the merits, that Dennis's attorney has persisted in prosecuting a meritless appeal in contravention of § 1927. We find, therefore, that some measure of sanctions is appropriate.”); Plattenburg v. Allstate Ins. Co., 918 F.2d 562, 564 (5th Cir. 1990) (“This brief also fails to make even one citation to the record where relevant . . . .”)
 ABA Model Rule 3.3(a)(2).
 662 F.3d 931 (7th Cir. 2011).
 Id. at 934, quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989), quoting Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1198 (7th Cir.1987).
Saturday, June 26, 2021
Often, students and practitioners ask for me book recommendations on appellate advocacy. Like many, I am a fan of Bryan Garner’s works and of anything by Judge Ruggero J. Aldisert. Recently, Professors Daniel P. Selmi and Rebecca A. Delfino, colleagues of mine when I was teaching at Loyola Law School Los Angeles, published the Second Edition of Principles of Appellate Advocacy with Wolters Kluwer (Aspen). The book is aimed at law students, but its straightforward organization and direct examples will help students and newer practitioners alike. I will definitely be recommending Principles of Appellate Advocacy in the future.
Delfino explained she found the first edition of the book when she needed a legal writing and appellate advocacy text that would not “overwhelm students with a disparate mixture of rules, arcane procedural requirements, and multiple writing instructions.” She also: “didn’t want to use a dense case book, a workbook of exercises, or seminar materials full of platitudes or hacks geared to practitioners. Instead, I wanted something practical, concise, and accessible written by someone who knows the law student audience.” Delfino found Selmi’s first edition easily manageable for students, with instructions “laser-focused on appellate brief-writing.”
In the second edition, Selmi and Delfino, now a co-author, have retained the comfortable length and approachability of the book. The second edition is only 166 pages before the samples and problems. While full of excellent concrete examples, the text flows easily and invites students to stay engaged with clear and direct writing. Just like a good brief, the book has a very helpful Table of Contents and keeps the focus on explaining why each proposed writing technique matters.
Delfino explained the main changes to the second edition came from student and colleague feedback. Selmi and Delfino added more information on standards of review, appealable error, and preservation of issues for appeal. They also included new exercises to stress the “rules for writing discussed in the text and [provide] practice revision and editing techniques.” Finally, they added a helpful video on oral argument and a sample syllabus.
I especially liked Chapter 10, “Basic Writing and Other Mechanics.” As the authors aptly explain, good writing “is not a matter of ‘style’” but of following key principles. Principles of Appellate Advocacy provides ten areas of focus for the best legal writing, such as manageable sentence and paragraph length and effective topic sentences. The book also has great examples, some in understandable diagram form, of the dreaded passive voice and nominalizations my students use sometimes.
As the authors note in the Introduction, “Appellate brief writing is a time-intensive exercise” and a “course in appellate advocacy undoubtedly will take more of students’ time than they estimate.” But the new edition of Principles of Appellate Advocacy will help students and newer practitioners get to winning briefs more quickly and easily.
Saturday, June 5, 2021
Winning an argument depends in substantial part on effectively using strategies to maximize your argument’s persuasive and logical force, expose weaknesses in your adversary’s argument, and convince the audience to adopt your position. Below are tips that will enhance your chances of winning an argument in many contexts, such as in court, at a debate, or in a negotiation.
1. Require that your adversary define relevant terms with specificity.
You should always require your adversary to define important terms that are essential to proving or disproving an argument. And you should never engage in or respond to arguments that consist of overly general propositions. For example, imagine the following discussion between two scholars who differ about the extent to which systemic racism and white privilege exists in the United States:
Scholar: Both history and current laws demonstrate that the United States is systemically racist, and that white privilege is pervasive throughout this country. Ultimately, until our society is more diverse and inclusive, we will continue to oppress marginalized populations.
Wow. There is a lot to unpack in that statement.
Importantly, the scholar’s adversary should neither react nor respond to the substance of that statement. Instead, the scholar’s adversary should state as follows:
I certainly agree that racism, inequality, and oppression are antithetical to basic human values. But how do you define and quantify systemic, or institutional, racism? Which specific institutions do you allege are racist? And how do you define and quantify white privilege?
This strategy forces your opponent to be specific and places on your opponent the burden to provide a definition upon which most reasonable people can agree. In so doing, the opponent will likely reveal underlying assumptions or biases in an argument and thus allow you to expose the flaws in whatever definition the adversary provides. At the very least, you will prevent your opponent from relying on unproven generalities and enable yourself to avoid a futile discourse involving statements that may lack an empirical foundation.
2. Expose logical fallacies in your opponent’s argument, especially appeals to authority and emotion.
Logical fallacies undermine many arguments. Two of the most common are the appeals to authority and emotion.
First, many advocates strive to enhance the validity and persuasiveness of an argument by relying upon well-respected sources or unnamed “experts.” Consider the following example:
Any athlete should have the right to kneel for the national anthem and thus exercise their right to free speech. As nearly every justice on the United States Supreme Court has stated, freedom of speech is critical to protecting liberty and democratic values.
This statement represents an appeal to authority. Specifically, the fact that nearly every justice on the Supreme Court may have expressed these sentiments utterly fails to support the argument that any athlete should have the right to kneel for the national anthem. In essence, the person making this statement is saying, “If the justices on the Supreme Court agree with me, the argument must be valid.” Wrong. An argument is valid only if it is based on facts and evidence.
Second, many advocates appeal to the audience’s emotion when striving to maximize an argument’s persuasive value. Consider the following example:
We must resist attempts to abolish the death penalty. A few years ago, my teenage son was brutally murdered by a man who had previously murdered four teenagers. The only way justice will be served is if we hold this man accountable for the atrocities he committed.
This is a tremendously sad story. But it is not a logically valid argument. Whether the death penalty should be abolished depends on facts and data regarding, among other things, whether the death penalty is applied fairly and equitably, and whether it deters crime. The above statement addresses none of these points.
3. Begin your argument with a foundational and well-accepted principle.
To maximize the likelihood that the audience will adopt your position, begin your argument with foundational principles that engender widespread agreement. For example, assume that you are debating whether Georgia’s recently-enacted voter identification law will suppress voter turnout, particularly among minority communities. Consider the following two statements:
Georgia’s voter identification law does not and will not impact voter turnout. And the law isn’t targeted at minority communities. It applies to everyone and enhances election integrity.
Racism and discrimination are intolerable, and equality is a basic principle of democracy and essential to liberty. To that end, we must embrace the core principle that every person, regardless of, among other things, race, ethnicity, religion, and sexual orientation, has an equal right to vote and must have equal access to the ballot box. Georgia’s law does not violate this important principle.
Which statement is better? The answer should be obvious – as should the reasons why.
4. Know the statistics. Again, know the statistics.
To win an argument, you must know the relevant statistics and empirical studies that impact the argument’s validity. If you don’t, or if you rely only on statistics and studies that are favorable to you, your argument’s persuasive force vanishes along with your credibility. For example, some scholars have posited, in law review articles and other publications, that implicit bias is a major contributor to ongoing discrimination, marginalization, and oppression in society. In support of this argument, they cite studies allegedly illustrating implicit bias’s pernicious effects.
There is only one problem. Several recent studies have debunked or, at the very least, cast serious doubt upon the relationship between implicit bias and biased behavior. Sadly, very few advocates of implicit bias training have addressed this damaging evidence. This failure renders their arguments unpersuasive and calls into question their objectivity as scholars.
To avoid this mistake, be sure to prepare extensively before any argument by knowing the relevant facts and data, both favorable and unfavorable, that impact your argument. Don’t be afraid to concede bad facts. Instead, explain why they do not affect the outcome you seek and highlight how the statistics favor the position for which you advocate.
After all, facts and statistics are the foundations of powerful arguments.
5. Transition from abstract to concrete arguments.
When making an argument, avoid extensive reliance on abstract principles. Instead, provide concrete evidence and examples that support your argument, and offer a solution or rule that demonstrates your position's practicality and workability. Consider the following example:
The Fourth Amendment should not be construed to allow law enforcement officers to conduct warrantless cell phone searches. Privacy is a bedrock principle in the Constitution and citizens have a right to be free from unreasonable, government-sanctioned intrusions on privacy. Furthermore, law enforcement must not be given the power to encroach upon basic civil liberties and thus place the freedoms of all citizens at risk.
Yeah, whatever. That statement is far too abstract. Consider this example:
Warrantless cell phone searches incident to arrest violate the Fourth Amendment. Unlike searches of closed containers or passenger compartments, a cell phone houses a vast amount of the very papers and effects, such as personal photographs, bank statements and other documents, text and email addresses, and online search history, that the Founders would have afforded the highest Fourth Amendment protection. As such, warrantless searches in this context are unreasonable per se. The Court should thus adopt a rule stating that law enforcement officers must have probable cause and warrant before searching a cell phone incident to arrest.
This statement is far more persuasive because it makes specific points, and proposes a workable and practical rule.
6. Use ‘hidden’ premises in your argument.
Including ‘hidden’ premises in your argument helps to reframe the issue(s) effectively in your favor and increases the likelihood that the audience will agree with your stated premises and conclusion. Additionally, it often presents as accepted or proven precisely the issue(s) that the argument or debate involves. Consider the following example:
The death penalty should be abolished immediately for three reasons. First, the death penalty disproportionately impacts African-American defendants. Second, it is almost certain that innocent people have been executed. Third, the death penalty serves none of the purposes of criminal punishment. Thus, because I am against racial discrimination and inequality, because I do not believe in intentionally murdering innocent civilians, and because I do not support criminal justice policies that have no societal value, the death penalty should be abolished.
This statement is effective because of the ‘hidden’ premises, even though some scholars would disagree with one or more of these assertions. But that is not the point. The point is that all reasonable people are against racial discrimination and inequality. No one believes in “intentionally murdering innocent civilians.” And few would support any policy that has no societal value. By including in your argument widely accepted principles, you increase the likelihood that the audience will accept your argument and adopt your position.
7. Never allow your adversary to characterize you or your argument inaccurately.
Make your adversary work diligently to establish any point that impacts negatively your argument. Put simply, always challenge inferences or assumptions that your adversary makes to undermine your position. Consider the following example:
Professor Smith recently drafted an article claiming that the late Justice Antonin Scalia was an “intellectual giant on the Supreme Court and the author of many extraordinary opinions that respected the Constitution’s text and structure.” Professor Smith’s endorsement of conservative values and a conservative judicial philosophy means that he will support judges who turn a blind eye to progressive values and marginalized populations.
Be sure to call out such nonsense. What Professor Smith said does not even remotely support the proposition that he endorses conservative values and will support judges who “turn a blind eye” to progressive values (whatever that means). Never allow your adversary to get away with such a misrepresentation and never concede more than is necessary to maintain your argument’s credibility.
8. Listen more and talk less.
It’s the quality, not the quantity, that matters. In an argument, never talk too much and dominate the discussion. When you do so, it suggests that you are insecure about the merits of your argument, that you believe your adversary has made compelling points that require an immediate response (which gives your adversary credibility), and that you are so rigidly attached to your argument that alternative perspectives are neither necessary nor welcomed. Unfortunately, that approach undermines your credibility.
Remember, less is more. You should listen calmly and carefully to your adversary’s argument. You should recognize good points that your adversary makes and strive to find areas of agreement. And when you do speak, be sure to make a concise, high-quality, and compelling statement. What does that mean? Get to the point immediately. Start with a powerful theme. Use the Rule of Three. Lead with your strongest points. Use statistics to support your assertions. End powerfully and confidently.
Then, shut up.
The best advocates pick their battles effectively.
9. Never show emotion.
Getting emotional is one of the worst things that you can do in an argument. When you show emotion, such as by being angry, irritated, or offended, it typically means that your adversary is winning the argument and that you are not confident in your position. Consider the following two statements from the captain of an airline to passengers who just flew through severe turbulence in bad weather:
Hi everyone, please do not worry. I know that things were really rough for several minutes, but I will never allow this plane to crash! Let me repeat – I will not let this plane crash, no matter what! I am a veteran of the Air Force and I’m going to fight this weather to the death!
If I were a passenger on this plane, I would immediately believe that the plane was going to crash nose-first into a ditch. Now consider this statement:
Hi folks, sorry about the rough air we just encountered. The plane is fine, of course, and the turbulence we just encountered is pretty common in this part of the country. We’re going to change our altitude as soon as possible to make your flight as comfortable as possible and we don’t expect much rough air for the rest of the flight.
If I were a passenger on this plane, I would feel assured and safe. The difference wasn’t simply the words. It was the measured manner with which the latter statement was delivered.
Simply put, in an argument, be confident. Be calm. Never act surprised by a point your adversary makes or a question that your adversary asks. This doesn’t mean that you shouldn’t show passion and conviction. You should certainly be your authentic self. But you must avoid the negative reactions and emotional outbursts that invariably raise questions about your credibility and the merits of your argument.
10. Don’t be an a******.
People like others who are nice. They like others who are respectful, friendly, and civil. They like others who are mature. They like others who are honest and genuine. And when people like you, they will be more likely to listen to you and find you credible. Most importantly, when people like you, they are more inclined to adopt your position. After all, people associate with those that they like and respect.
Conversely, people hate jerks. And they know them when they see them. Jerks attack people rather than ideas. Jerks insult others. Jerks always think that they are right and that else is always wrong. Jerks interrupt people when they are speaking. Jerks misrepresent others’ positions. The list goes on and on.
You get the point. Don’t be an a******.
Remember, when you make an argument, people are not just listening to what you say. They are evaluating you.
Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,
Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5
Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.
I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:
U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling
Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.
Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!
According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point. Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.
How common are pop culture references in judicial opinions? I ran a few searches on Westlaw Edge to see what I could find. Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy. Justice Kagan did make a Star Wars reference in her dissent in Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).
A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:
- "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
- "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
- "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
- "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)
So appellate judges--throw in those pop culture references! Maybe, just maybe, it will increase awareness and interest in the judiciary.
Saturday, May 15, 2021
While avoiding grading recently, I found an interesting analysis of inclusive language as a lawyer’s professional responsibility, and as a form of allyship. Jayne Reardon, a former Illinois State Bar disciplinary counsel, posted a thoughtful piece on inclusion and allies on the Illinois Supreme Court Committee on Professionalism’s 2Civility website. See Jayne Reardon, Inclusive Language Is Allyship (Apr. 22, 2021).
Reardon aptly concludes: “Given that ‘effective communicator’ is part of a lawyer’s job description, we should be sensitive to how listeners may interpret our language.” Id. As lawyers, “our stock in trade is language. We can choose language that makes our points persuasively or language that is distracting and possibly offensive. Distracting or offensive language, of course, doesn’t serve our clients, our profession, or our image in the eyes of the public.” Id.
As appellate lawyers, we are in an especially good position to combine our duty to communicate clearly with the goal of using language non-offensively. In so doing, we can also use our privilege to serve as allies for underrepresented groups.
How do we combine communication with allyship? Hopefully, in many ways, including using our writing skills and engaging in conversations on bias and inclusion.
Reardon suggests we start by avoiding metaphors and by thinking carefully about the way phrases like “Chinese wall” and “the blind leading the blind” can be offensive and painful. Id. Ellie Krug, founder and president of Human Inspiration Works, LLC, finds “the language of ‘us vs. them’ particularly pernicious to our democratic values and “exhorts lawyers to embrace the diversity, equity, and inclusion practices that the business community adopted long ago.” Reardon, Inclusive Language Is Allyship.
We can also connect our language to allyship with a full understanding of what being an ally can entail. As Nicole Asong Nfonoyim-Hara, the Director of the Diversity Programs at Mayo Clinic, defines, “allyship” is "when a person of privilege works in solidarity and partnership with a marginalized group of people to help take down the systems that challenge that group's basic rights, equal access, and ability to thrive in our society." Samantha-Rae Dickenson, What Is Allyship? (Nat’l Inst. of Health Jan. 28, 2021). “Allyship” can also focus on “help[ing] humans who often lack a voice to speak on their own behalf or who aren’t always in the room when demeaning or marginalizing comments/behaviors occur, or marginalizing policies or plans are made.” Ellie Krug, Allyship for Lawyers in an Awakened America (Apr. 21, 2021).
As Reardon notes, “[w]hen we disregard how others may interpret our language or are unthoughtful with our words, we risk offending members of our professional community, like the judge, judge’s staff, opposing counsel, or others who may hear the oral argument or read the brief. In choosing more inclusive language, we choose allyship.”
I am working to choose allyship in my writing and teaching, and I appreciate the resources and conversations about being an ally from 2Civility and others. If you are interested in seeing more of the 2Civility website and programs, you can subscribe here for the Commission’s weekly newsletter.
Sunday, May 9, 2021
In the past year, COVID-19 has transformed how legal education – and legal writing – is delivered to students. Online instruction replaced in-person instruction, professors and students were forced to adapt quickly to an alternative learning format, and grading policies were adjusted to account for the unique hardships that online learning engendered for many law students. And all of this occurred while administrators, faculty, and students were living in fear of a virus that has killed more than 570,000 citizens in the United States.
Notwithstanding, the challenges involved in transitioning to online learning – along with the challenges of transitioning to in-person instruction post-COVID – need not compromise the transformative and practical instruction that legal writing courses can effectuate, regardless of whether through online or in-person instruction. Indeed, several universal principles or designs can ensure that students learn real-world writing and critical thinking skills in online and in-person contexts. Those principles are below and can be useful to both new and experienced legal writing faculty to ensure that legal writing courses provide students with the competencies to succeed in law school and the legal profession.
1. Connect legal writing to the real world – a memo and appellate brief are not sufficient.
The best legal writing courses and curriculums connect pedagogy and assignments to the real world. To do so, legal writing professors should require students to draft and re-draft the most common litigation documents in their courses, including complaints, answers, motions to dismiss and motions for summary judgment, trial briefs, and appellate briefs. And these assignments should be given in the order they would be drafted in practice.
To accomplish this objective, legal writing professors should, either individually or collaboratively, draft a detailed hypothetical fact pattern that includes substantive issues from all first-year courses and requires students to “litigate” a hypothetical case from the complaint to appellate brief in the first year of law school (or the first three semesters). The assignments could be administered as follows:
Legal research assignment (one or more issues in the hypothetical)
Predictive memorandum (closed research)
Re-write of the predictive memorandum with one or more issues added (open research)
Answer (which allows students to self-critique their complaint consider a legal issue from an opposing perspective)
Motion to Dismiss
Motion for Summary Judgment (with previously prepared discovery provided)
Re-write of the Motion for Summary Judgment
Re-write of Appellate Brief
Appellate court opinion (students assume the role of judge and draft an opinion affirming or overturning the lower court)
This format will allow students to gain experience in drafting and re-drafting the most common litigation documents in the order that they would be drafted in practice, thus enabling students to understand the ‘big picture’ of how law is practiced, and gain experience in applying predictive and persuasive writing techniques to various real-world documents and contexts. Perhaps most importantly, this approach enables professors to focus on persuasive advocacy from day one, in which students will be required to, among other things, formulate a theme and theory of the case, distinguish relevant from irrelevant facts, and synthesize the law to present a compelling legal argument. Of course, this would not eliminate instruction on predictive writing; it would simply incorporate the predictive writing component into the litigation and sequence it appropriately.
2. Prioritize integration over separation – legal writing assignments should be connected to doctrinal courses
When drafting a multi-issue hypothetical that allows students the opportunity to litigate a hypothetical case from the complaint to the appellate brief, law professors should include issues from the students’ required first-year courses. Doing so will enable students to apply the legal doctrines that they are learning in their required courses to real-world contexts and help students to understand how these doctrines operate in law practice. Furthermore, by applying foundational legal doctrines (e.g., personal jurisdiction, negligence) to a real-world fact pattern, students will simultaneously improve their writing and critical thinking skills and learn how to effectively analyze legal issues, which will maximize their performance on end-of semester-exams and enhance their ability to think like lawyers.
For example, a multi-issue fact pattern in a first-year legal writing curriculum can include issues such as negligence, personal jurisdiction, assault and battery, proximate causation, and supplemental jurisdiction. By connecting the assignments in legal writing courses to the topics students are learning in doctrinal courses, the legal writing curriculum will be an essential and integrated part of the curriculum.
3. Require students to read excellent writing
Before students write, they should read excellent legal writing texts and documents. After all, students need to understand what good writing is before they can become excellent legal writers. For example, professors should require students to read Plain English for Lawyers by Richard Wydick and Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which is a perfect example of outstanding storytelling and persuasive advocacy.
4. Make the Rule of Three a cornerstone of legal writing instruction.
The Rule of Three is an effective technique to maximize the persuasive impact of an argument. This technique instructs students, when making legal arguments, to identify three reasons that support a desired outcome or remedy. Social science research demonstrates that the Rule of Three effectively simplifies and organizes an argument for the audience, and appeals to the audience because people respond positively and attentively to arguments that are delivered in sets of three.
5. Teach students how to re-write and edit, not just write
Excellent writing requires excellent editing.
Indeed, to write effectively, students must understand and embrace the writing process, which consists of the: (1) first draft; (2) rewriting phase; and (3) revision phase. Thus, legal writing professors should instruct students on macro and micro level editing, including issues such as organization, conciseness, word choice, grammar, and style. Put simply, if students do not understand how to re-write and edit effectively, they will not write persuasively.
Perhaps the best way to train students in re-writing and editing is to provide them with a legal brief written by a practicing attorney and require them, individually or in groups, to re-write and edit the document, and explain why their edits made the document flow better and present the arguments more persuasively.
6. Include time-pressured assignments
As every lawyer knows, legal documents must often be drafted under strict time constraints. Thus, law students should gain experience in drafting real-world documents under the pressures that attorneys face daily. For example, legal writing instructors can require students to draft a rule section explaining the law of defamation and give students, either individually or in groups, twenty-four hours to complete the assignment. Doing so enables students to continue developing their legal writing skills while simultaneously coping with the pressures that they will encounter in law practice.
7. Include simulations and require students to argue opposing viewpoints
When using a multi-issue hypothetical that requires students to litigate a case from the complaint to the appellate brief, legal writing faculty should include simulations, such as a client interview, presentation of the law to a partner, settlement negotiations, and trial and appellate court oral arguments. The point is to train students to communicate effectively and interpersonally, which essential to excellent counseling and advocacy.
8. Truly ‘Flip the Classroom’: Turn the students into teachers
Students should be challenged in the legal writing classroom and curriculum – and treated as peers. One way to do this is to truly flip the classroom by requiring students, as part of an assigned group, to teach particular classes that discuss topics such as IRAC/CRAC, case synthesis, and binding versus persuasive legal authority. Doing so will ensure that the ‘teaching students’ master the relevant material and gain experience in public speaking and communication. Also, this exercise can empower students and create an environment in which they are views as peers in a collaborative learning process.
9. Stay away from politics
No one cares about your political views. More specifically, no student wants to enroll in a course where they will be subject to ideological indoctrination. Students learn best – and are motivated to learn – in a classroom where they feel welcomed and accepted. As such, classrooms should be places in which all views – liberal, conservative, libertarian, and whatever else – are welcomed and respected. Thus, to promote diversity of viewpoint and experience, law professors should never make statements or design assignments that strive to advance a particular point of view or agenda. Doing so is antithetical to creating a diverse and inclusive classroom environment.
10. Be available – always
Great professors care deeply about their students’ success and demonstrate that commitment by being accessible and available to every student – even in the evenings and on weekends. Indeed, getting to know each student individually – and establishing productive relationships with each student – inspires trust and motivates them to work hard and succeed. For these reasons, go the extra mile and be available to students whenever they need advice or assistance. It shows that you care, which inspires students to excellent lawyers – and citizens.
Ultimately, the best legal writing professors realize that their mission is not about them – it is about improving the skills and lives of their students. These tips will help in achieving those objectives and make the legal writing curriculum a place where students learn to become great lawyers and great people.
 See Adam Lamparello & Megan Boyd, Legal Writing for the Real World (LexisNexis, 2014).
 See Adam Lamparello & Charles E. MacLean, The Guide to Experiential Legal Writing (Carolina Academic Press, 2015).
 See, e.g., Kathleen Elliot Vinson & Sabrina DeFabritis, Under Pressure: How Incorporating Time-Pressured Performance Tests Prepares Students for the Bar Exam and Practice, 122 West Va. L. Rev. 107 (2019).