Tuesday, October 15, 2019
Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.
Model Rule 1.1: Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.
Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.
Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:
were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.
The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.
The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.
Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:
(a) A lawyer shall not knowingly:
(2) 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[.]
Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.
Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.
In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.
In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.
The court admonished:
When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.
Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:
While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.
Finally, appellate counsel must be mindful of Model Rule 8.2(a):
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .
Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).
Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.
The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:
Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.
Id. at 148-49.
Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.
We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.
Sunday, October 6, 2019
Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.” Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.” In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”
What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?
1. Justice Scalia Wrote Clearly and Concisely
Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.
2. Justice Scalia Wrote for the Audience
Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:
I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."
For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.
Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters
3. Justice Scalia Understood the Importance of Rewriting and Revising
Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:
I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."
Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:
What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."
Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.
4. Justice Scalia Understood that Great Writing Reflects Great Thinking
Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind." An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.
5. Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience
Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.
As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.
Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.” Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”
 David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer
 Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.
 Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).
 Id. (emphasis in original).
 Id. (emphasis in original).
 Id. (emphasis added).
 Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).
 Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.
Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).
Saturday, September 21, 2019
Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated. According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it." The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time." https://constitution.congress.gov/about/
The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers. The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional.
Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited. Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only. On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.
In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained: “Unfortunately, the public facing version is not . . . lucid.” The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen." The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public. Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students." https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.
Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated. While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested. On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”
Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions. Moreover, the pages are integrated nicely with the Library’s other resources. For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.
For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource. Hopefully, the continued updates will be quick and helpful as well. Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.
Tuesday, September 17, 2019
Appellate advocates must write clean, crisp prose that will persuade judges. We constantly strive to improve the readability of our prose. But the conventions of legal writing often interfere with readability. One such convention is how we format and cite quotations from case law, particularly when we alter or omit inconsequential parts of the quotation to make the quotation more readable, or when the material we are quoting is a quotation from an earlier case.
Let’s say that we represent Mr. Smith in his claim that officers used excessive force. In our brief we write:
Officers used excessive force when they arrested Smith.
In evaluating these claims, a court must consider (1) whether “the handcuffs were unreasonably tight, [sic] (2) [whether] the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459. 468-469 (S.D.N.Y.2008) (emphasis and alteration omitted) (quoting Esmont v. City of N.Y., 371 F.Supp.2d 202, 215 (E.D.N.Y.2005)).
Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015).
Does it matter to our argument that the reader know that the Higginbotham court quoted Lynch, a case from another district court, for this standard (or that Lynch quoted another district court case); that the court added the word “whether” to that quote; that it omitted emphasis and alteration; or that the court in Higginbotham mistakenly used a comma after “tight” when the Lynch court had used a semicolon? In most instances, that information does not affect our analysis, so why do we include it if our goal is to write clean, crisp prose? The short answer is that the Bluebook says we should. But one author, Jack Metzler, who tweets as @SCOTUSPlaces, suggests that we omit this superfluous material. He has proposed a new citation parenthetical—(cleaned up) to help make our prose more readable when we quote case law.
In Cleaning Up Citations, 18 J.App. Prac. & Process 142 (2017), https://ssrn.com/abstract=2935374 Metzler discusses the need for, and importance, of accurate quotations and citations. He points out that the citation sentence following a quotation gives readers the information they need to assess the weight of the quoted authority. But, he notes, quotations and citations are in tension with the need for readability. So how can we convey the information the reader needs to assess the weight of authority without interfering with the readability of our brief? Metzler proposes that “legal writers adopt the parenthetical (cleaned up)” to show that in quoting a court’s opinion the writer:
- has removed extraneous, non-substantive material like brackets, quotation marks, ellipses, footnote reference numbers, and internal citations;
- may have changed capitalization without using brackets to indicate that change; and
- affirmatively represents that the alterations were made solely to enhance readability and that the quotation otherwise faithfully reproduces the quoted text.
Id. at 154.
Lawyers, beholden as we are to tradition, might be reluctant to use (cleaned up) but we are in good company if we do. Bryan Garner, an expert on legal writing, has endorsed (cleaned up) https://www.lawprose.org/lawprose-lesson-303-cleaned-up-quotations-and-citations/ and judges across the country have used (cleaned up) in opinions. According to Metzler, as of August 31, 2019, (cleaned up) had been used in 1775 judicial opinions. It has been used by every federal circuit court of appeals except the First, fifty-four United States District Courts, twelve state supreme courts, and ten state intermediate appellate courts.
(Cleaned up) has its critics. Adam Eakman, blogging at Attorney Words, has identified some problems with using (cleaned up). Several examples Eakman gives stem from misuse or misunderstanding of how and when to use this new parenthetical. http://attorneywords.com/cleaned-up/. And, as Eakman points out, it is often better to paraphrase material from a case than to quote it. Eakman believes that (cleaned up) gives writers an “easy out” that will cause lawyers to quote material rather than paraphrasing. While that may be true, given the penchant lawyers have for quoting it’s better to make those quotations more readable. (Cleaned up) does that. We can work on paraphrasing too (and sometimes it takes work to paraphrase well).
So, how does (cleaned up) up work in practice? Let’s clean up the example in our brief for Mr. Smith:
Officers used excessive force when they arrested Smith. “In evaluating these claims, a court must consider (1) whether the handcuffs were unreasonably tight, (2) whether the defendants ignored the plaintiff’s pleas that the handcuffs were too tight; and (3) the degree of injury to the wrists.” Higginbotham v. City of New York, 105 F. Supp. 3d 369, 377 (S.D.N.Y. 2015) (cleaned up).
Our quotation is now easier to read and what was a block quotation (fifty words or more) can now be an in-line quotation. Metzler’s article gives several other examples of how (cleaned up) can help improve the readability of legal writing, something we should always try to do.
Sunday, September 15, 2019
Five Tips for Law Students to Become Effective – and Persuasive – Legal Writers
Learning how to write effectively and persuasively in a variety of legal contexts is among the most important skills needed to competently practice law. Indeed, a recent survey by LexisNexis that included 300 hiring partners and law faculty revealed that forty-one percent of attorneys and fifty-one percent of law faculty believe that writing is among the most important skills needed to successfully practice law. See BarBri State of the Legal Field Survey, available at: http:// www.thebarbrigroup.com/files/white-papers/220173_bar_researchsummary_1502_v09.pdf.
Put simply, excellent lawyers are also excellent writers. A lawyer’s ability to draft persuasive pleadings, motions, and briefs at the trial and appellate stage often determines the likelihood of success in a particular case and the likelihood that an attorney will achieve success in the legal profession.
Given the importance of developing effective legal writing skills, particularly regarding persuasive writing, aspiring and current law students should strive to perfect their writing skills before graduation. Below are five tips, regarding both style and substance, that will provide a solid foundation upon which develop competent persuasive writing skills.
- Rewrite and Revise
Great lawyers know that their first drafts of pleadings, motions, and briefs are not their best and final drafts. Instead, great lawyers focus on rewriting and revising their first draft to ensure that their work product is of the highest quality.
The rewriting phase consists of a macro or substantive edit. A macro edit involves reviewing and editing a legal document for large-scale errors or omissions, with a particular focus on the flow, clarity, and substance of legal arguments. During this stage, you should:
- Ensure that your document flows effectively, is concisely written, and is easy to understand (e.g., eliminate unnecessary repetition and extraneous or irrelevant facts);
- Ensure that you have stated the law accurately;
- Eliminate unnecessary exposition of legal doctrine (i.e., state what the governing law is, but avoid a lengthy recitation of how the law developed);
- Ensure that you have addressed relevant counterarguments and acknowledged weaknesses in your case where appropriate; and
- Ensure that you have a powerful introduction in which you clearly state the basis upon which your client should prevail and obtain the remedy you seek.
The revising phase consists of a micro or stylistic edit. During this stage, you should:
- Ensure that there are no grammatical and spelling errors (if your legal document has spelling or grammatical errors, it will detract from the credibility of your legal argument);
- Separate long paragraphs into smaller paragraphs (as a general matter, a paragraph should be three to five sentences);
- Identify and revise lengthy sentences (as a general rule, sentences should be no longer than twenty-five words);
- Eliminate unnecessary words (particularly adjectives), commonly confused words, over-the-top language, and artificial emphasis;
- Ensure that you use transition words effectively;
- Maintain consistency in verb tense; and
- Ensure that you are using the active voice,
- Be Concise and Keep It Simple
Judges are very busy and, with the assistance of their clerks, judges read countless motions and briefs. Given this fact, neither a judge nor a clerk desires to read pleadings, motions, or briefs that are unnecessarily verbose and lengthy. For this reason, be sure to eliminate complex, esoteric, or unnecessary words, Latin, legalese, lengthy words and phrases, and repetition from your documents. Indeed, the quality of an attorney’s writing directly affects an attorney’s credibility and, ultimately, the likelihood of succeeding on the merits. Consider the following example (as stated in a complaint):
"The defendant’s shocking and insulting statements, which, as discussed infra and as outlined supra, were false, malicious, and injurious, particularly given that the statements caused plaintiff immeasurable embarrassment and humiliation ipso facto demonstrate that plaintiff has stated a prima facie case that the defendant defamed plaintiff in an egregious manner."
"The defendant made intentionally false and defamatory statements that caused the plaintiff to suffer substantial damages."
The first sentence is fifty words and the second is sixteen words. Yet, both sentences convey the same meaning and make the identical claim. Put simply, when drafting a complaint, focus not merely upon what you are saying, but how you are saying it.
- Draft a Compelling Factual Narrative
Although the governing legal principles in a case are certainly important, the facts of a case largely determine whether a litigant is likely to succeed on the merits. Indeed, because legal rules or standards are often stated in broad terms, the application and interpretation of those principles depend on the facts of a particular case. For example, the Eighth Amendment to the United States Constitution prohibits the imposition of “cruel unusual punishment.” Whether a punishment is cruel and unusual, of course, depends on the facts, namely, the specific punishment at issue that a claimant alleges violates the Eighth Amendment. Likewise, basic contract law principles provide that a contract is not valid without the parties’ assent. Whether the requisite assent is present obviously depends on the facts of a particular case. As these examples demonstrate, the facts, not the law, most likely determine whether a client is likely to prevail. For this reason, when drafting a pleading, motion or brief, be sure to focus on drafting a compelling, detailed, and concise factual narrative in which you persuade the court that a ruling in your favor is the correct and just outcome.
- Address Unfavorable Law and Counterarguments, and Explain Why They Do Not Affect The Remedy You are Seeking
In most cases, the law will not completely and unequivocally support an attorney’s legal position. Rather, the relevant case law will often contain favorable and unfavorable decisions that create some degree of uncertainty regarding the likelihood of succeeding on the merits.
Importantly, when drafting a brief at the trial, appellate, or supreme court level, an attorney should never ignore unfavorable case law. Doing so is dishonest and strategically risky because, in most instances, the judge will find the law that a lawyer has ignored, which will damage the attorney’s credibility and the persuasive value of the attorney’s legal arguments. To avoid this problem, a competent attorney will acknowledge unfavorable case law and explain to the court why these cases do not undermine the attorney’s argument and the remedy that the attorney is seeking. In so doing, an attorney will retain credibility with the court and maximize a client’s chances of succeeding.
- If You Want to Become an Excellent Writer, Read Excellent Writing
If you want to become an effective legal writer, be sure to read excellent legal writing, which will enable you to observe, among other things, how experienced attorneys apply various persuasive writing techniques to maximizes their factual and legal narratives.
Law students who are interested in reading excellent legal writing can begin by reading John Roberts’ brief in Alaska v. Environmental Protection Agency, which can be accessed here: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.
Of course, these tips are not exhaustive, but they will provide a foundation upon which law students can begin to develop effective writing skills. Additional resources include the following:
Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates, available at: https://www.amazon.com/Point-Made-Write-Nations-Advocates/dp/0199943850
Bryan A. Garner and Antonin Scalia, Making Your Case: The Art of Persuading Judges, available at: https://www.amazon.com/Making-Your-Case-Persuading-Judges/dp/0314184716
Steven Stark, Writing to Win: The Legal Writer, available at: https://www.amazon.com/Writing-Win-Steven-D-Stark/dp/0307888711
Richard C. Wydick, Plain English for Lawyers, available at: https://www.amazon.com/Plain-English-Lawyers-Richard-Wydick/dp/1594601518
Thursday, August 22, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar is inspired by the start of a new law school year. I’ve been teaching legal writing courses for nearly twenty years, and it’s always right about now that I start collecting myself and my thoughts for the feedback I’ll be giving new legal writers on their writing. I also start thinking about the lawyers and judges who will be welcoming recent graduates into the practice and who might also be supervising those new lawyers and giving them feedback on their legal writing.
In this post, I describe a perspective an experienced lawyer can adopt for giving feedback to novice legal writers; an experienced lawyer can think about giving feedback as establishing a particular kind of ethos—the ethos of an “expert coach.” By taking the perspective of an expert coach when giving feedback, the experienced lawyer can help the novice legal writer more fully engage with the feedback and ultimately be a more effective, competent, and independent legal writer in the future.
The idea of developing a positive ethos for feedback is explored in depth in my article, “Building Credibility in the Margins: An Ethos-Based Perspective for Commenting on Student Papers,” so you can read more about the rhetorical theory that supports this perspective there. In addition, if you are interested in reading even more about how to give feedback to legal writers, take a look at Volume 1 of the Legal Writing Institute’s Monograph Series, The Art of Critiquing Student Work. While these articles are mainly about the feedback given by faculty to students in law school, the ideas in the monograph articles are transferable to the mentoring and supervising relationships between more experienced lawyers and novice legal writers who are just beginning their professional legal writing careers.
A Commenting Ethos Is A Perspective, Not A Technique
Mostly, when I talk with others about giving feedback to legal writers on their writing, we end up talking about the “techniques” for giving good feedback. Examples of techniques for giving feedback include “be sure to include feedback that is positive,” “avoid critical comments that start with the word ‘you,’” and “use a describe-evaluate-suggest” structure for your comments.” These techniques are all important in constructing effective feedback (both written or oral) for others’ legal writing. (You can learn about some of these techniques in the monograph and at the end of this article.) But, this post is not about technique. Instead, it is about the perspective one can take when giving feedback. That is, how should one think about the feedback task? How should a lawyer giving feedback approach the work? What attitudes should she adopt?
One perspective you can take on giving feedback is to think of feedback as a place where you construct who you are as the person giving feedback, a place where you construct your ethos. Ethos (one of the Aristotle’s three artistic modes of persuasion—ethos, pathos, and logos) is the idea that a person’s identity—as perceived by the audience—has persuasive force.
Aristotle considered ethos as having three dimensions: competence, character, and goodwill. In the context of giving feedback to newer lawyers, this means demonstrating that you, the commenter, are competent to give the feedback, are of the right character to give the feedback, and have goodwill toward the writer in giving feedback. A positive commenting ethos can help you meet the goals of persuading the writer engage with your feedback, to improve the document (and the next document), to better understand the writer’s audience, and to be more confident and competent to draft and revise in the future. Conversely, developing a negative feedback ethos can result in giving feedback that is ignored or not implemented fully—the perception of your competence, character, and goodwill doesn’t persuade the audience to listen to you.
Ethos is not something that you craft exclusively on your own; instead, ethos exists at the intersection between you, others with whom you interact, and the groups or communities in which you are a member. In other words, ethos is a social act that takes place in a particular cultural context. Thus, when giving feedback on the legal writing of others, you and your audience are acting together to construct your ethos for the feedback situation. The perspective you bring to that interaction can work to shape how your audience will interact with you to shape your credibility as a source of feedback. I’ve found that taking a perspective that emphasizes the ethos of “expert coach” rather than “rival writer” will improve your feedback’s appeal.
A Positive Commenting Ethos: Expert Coach, Not Rival Writer
Developing an “expert coach” commenting ethos can help you make choices in your feedback that will appeal to novice legal writers, engage them, and improve their writing. So, what is the ethos of an “expert coach”?
An expert coach is comfortable with (but not arrogant about) his or her competence and seeks to demonstrate that competence through detailed and kind feedback. The expert coach does not want to make the novice writer feel poorly about being a novice or about missing the mark on a first or even second attempt at a final product. Instead, the first goal of the expert is to show the novice that the expert is speaking on behalf of the community of readers and writers—that the expert is a “fellow legal reader.” This ethos of expertise coupled with fellowship builds the novice’s trust in the feedback and in the person giving it.
The expert coach’s second goal is to bring the new legal writer into the community by revealing the range of the accepted practices in the community to which the new writer wants to belong. This is the coaching perspective—the experienced lawyer sees himself as the source of detailed information that gives the novice writer insight into the audience’s needs and expectations. The goal of the expert is to build the novice’s confidence in herself so that she will make further efforts to join the community of legal writers and readers.
The expert coach does not project himself as authoritarian, someone who “tells” the new writer what to do or rewrites the document so that it is “right.” Instead he sees himself as an authority who knows much about the subject of legal writing and can guide, model, and make suggestions for someone who doesn’t have the same level of knowledge. The expert coach knows that she wants to convey feedback in an objective rather than a judgmental tone, using a tone that builds trust rather than exacts judgment or conveys irritation, impatience, or annoyance. An expert coach knows that supportive patience is essential to building the trust that results in the novice benefitting from the feedback.
An expert coach sees herself as sitting “alongside” the novice writer; the coach is not a rival trying to take control of the novice writer’s work or to demonstrate why the expert “wins” and the novice “loses.” Instead, the expert coach understands that the goal of the feedback is to give the writer power, not to take power away. Thus, the feedback tone is collaborative, not competitive, and the feedback content is reflective and engaging, not simply a rewrite of the novice’s work. The expert coach adopts an ethos that makes feedback empowering and gives the novice both ideas and options for how to improve.
Adopting a coaching ethos is particularly useful in relationships of supervision. If mentors and supervisors want mentees and subordinates to grow as writers by thinking, making choices, and exercising judgment for themselves rather than doing only what they “are told to do,” feedback should empower novices to get comfortable thinking, choosing, and judging. So, a good commenting ethos abandons a “rival” perspective and takes a seat “alongside” the novice as a fellow legal reader who encourages independence and responsibility-taking.
Because giving feedback on legal writing is such a practical, hands-on activity, it may seem a bit impractical and high-minded to focus attention on developing a perspective from which to begin the task. But, I’ve found that being intentional about the ethos I am constructing in the feedback process has helped me meet my feedback goals. If the goals of your feedback are to help new legal writers learn; join the discourse community; and be more independent, confident, and successful writers, developing an expert coach ethos will help you achieve those results.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Monday, August 12, 2019
In March, Professor Teri McMurtry-Chubb blogged about her forthcoming article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, which will be published in the Washburn Law Journal. The article can now be accessed here on SSRN.
As Prof. McMurtry-Chubb explained in her post, her article explores "how bias shapes lawyer analytical and reasoning processes," and it is the product of "a 6-year empirical research study [that she] conducted involving student motion and appellate briefs generated from case files involving social justice issues." In her article, Prof. McMurtry-Chubb goes into more detail on the different problems that she used in the study--ranging from legacy admits to law school to Indian Child Welfare Act cases. Her article, her study, and the results are simply fascinating and raise important questions for law schools. As she explains in the article,
This research project has the potential to change how we view the preparation of law students for law practice. As such, it has significant implications for how we approach diversity, equity, and inclusion in legal education and the law. Legal education touts diversity—equity and inclusion less so—as aspirational goals, but has largely focused efforts to achieve the same in admissions and faculty hiring.
. . . .
. . . The study in this Article suggests that the presence of non-White racial and ethnic bodies in law school classrooms do not, and cannot, in and of themselves, promote
better learning outcomes, prepare all students for a globally diverse workforce and society, and help them to shape professional identities beyond the touch of white supremacy, patriarchy, and capitalism.
In sum, rarely have law schools mapped and studied their curricula to assess how it perpetuates inequities and reinforces hierarchies. This and more are required to address the law and lawyers’ inability to fully serve racially and ethnically diverse client groups. As this study teaches us, legal educators and employers cannot take for granted that students leave law school with the skills to advocate effectively for historically marginalized, underrepresented groups, even as they matriculate successfully through law school. A heart for justice is not sufficient to do justice. Rather, law schools must actively develop interventions in their core curricula that directly and explicitly engage students around issues of power and privilege. Until then, students will not act with agency to transform law practice and its societal impact in ways that challenge their unexamined assumptions and allow them to make arguments in the service of justice.
Thank you Prof. McMurtry-Chubb for your important contribution to how we approach legal education. I am certainly going to be mindful of these issues as I teach this semester.
Thursday, August 8, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar returns to the rhetorical strategy of setting-off text as a way focus a reader’s attention and create meaning. In my post from a month ago, I described how using lists in legal writing employs visual rhetoric strategies to both stack-up and set-off important information. In this post, I return to the concept of setting off information, this time through a punctuation mark: the em-dash.
In his 2006 book, The Economics of Attention: Style and Substance in the Age of Information, Richard Lanham argues that “attention is the commodity in short supply” in an information economy. Legal writers know this all too well; they have an ethical duty to keep a reader’s attention focused on the content of complex legal documents. But busy legal readers are inundated with more information than they can possibly digest, have access to that information at speeds faster than ever, and are likely subjected to more distractions from reading on screens that are animated with competing demands on the reader’s attention. In a digital world, the legal writer’s need to point the reader toward important information is more critical than ever.
A punctuation mark can be an efficient and effective way to visually call a reader’s attention to an important point and to shape the meaning of the text it punctuates. An underused punctuation mark with visual rhetorical impact for attention-getting is the em-dash. When used appropriately—and sparingly—the em-dash is an easily implemented, powerful visual rhetoric technique for legal writing.
Em-dashes typically are made by typing two hyphens between two words with no spaces between any of the characters. Remember that a hyphen (-), which connects compound words and modifiers (among others) like em-dash, absent-minded, or mother-in-law, is not an em-dash. An em-dash—appearing on either side of this text—is at least twice as long.
An em-dash visually separates (1) a phrase or clause within a sentence or (2) information at the end of a sentence from the rest of the sentence. When a pair of em-dashes are used within a sentence, they typically take the place of commas or parentheses; when a single em-dash is used toward the end of a sentence, it typically takes the place of a colon or semi-colon.
Em-dashes take advantage of both novelty and white space to draw the reader’s eye to text that either follows a single em-dash or lies between em-dashes. Used sparingly, em-dashes have novelty; readers will notice them and ask, “I wonder what this is about?” In addition, an em-dash creates more white space around text than that created by a comma, semi-colon, or colon, visually highlighting the selected information and causing the reader to notice it. While commas, parentheses, semi-colons, and colons also set-off information, they do so in a less forceful and attention-grabbing way. The em-dash, on the other hand, is more assertive and commanding—hey! this text is important!
An em-dash, however, does more than just call attention to text; the em-dash also provides a clue for the reader about how to give meaning to the sentence as a whole. The em-dash is a visually persuasive framing device; the em-dash helps the writer select a dominant meaning for the sentence while deflecting other meanings that are available.
Take for example this sentence from a legal argument in a case where Jones is arguing that Jones’s marriage to Smith should be annulled because the marriage took place while Jones was under duress:
Smith sent Jones an email the day before the wedding threatening to expose Jones’s drug problem to his parents.
This sentence has essentially three pieces of information:
- Smith sent Jones an email.
- The email threatened to expose Jones’s drug problem to his parents.
- This email was sent the day before the wedding.
In the sentence above, all three pieces are expressed in a way that makes the ideas contained in them roughly equal in importance. That is, the frame of the sentence is balanced evenly, all of the ideas in the sentence share the same importance, and the reader is free to decide which parts of the sentence to give more or less attention.
But notice what happens to the sentence’s meaning when one of the pieces of information is set off with em-dashes:
Smith sent Jones an email—the day before the wedding—threatening to expose Jones’s drug problem to his parents.
Now, by using em-dashes, the writer causes imbalance in the sentence’s frame, visually setting off what the writer wants the reader to notice: the timing of the threatening email. The em-dashes guide the reader about how the sentence is meant to be read; the timing of the email is the most important information. The em-dashes help prime the reader to expect that Jones’s duress argument will be stronger because of the e’mail’s timing. By using em-dashes, the writer deploys dramatic interruption to call attention to important information and to shape the meaning of the sentence. And this is accomplished with only punctuation.
Notice what happens to the sentence if the writer wants to emphasize the content, not the timing, of the email:
The day before the wedding, Smith sent Jones an email—a threat to expose Jones’s drug problem to his parents.
Here, the em-dash sets off the text at the end of the sentence. Visually, the single em-dash acts almost like an arrow, pointing the reader toward what the writer wants to be the most important information. Structuring the sentence this way places the reader’s attention on the threatening email’s content. Instead of being primed to focus on a timing argument, the reader is primed to focus more on the threatening language. By moving the em-dash to call attention to a different part of the sentence, the writer changes the meaning of the sentence for the reader.
While legal writers should use em-dashes to draw attention and to help create meaning, writers should be careful not to overuse them. Overuse causes em-dashes to lose their dramatic visual impact. Think of em-dashes like the salt on the top of a salted caramel. A little bit of salt enhances the sweet flavor, making the candy more satisfying; too much salt ruins the whole thing.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Monday, August 5, 2019
Over the summer, I have been going through moot court brief section by section, giving moot court drafting and scoring advice. In this final installment I will discuss the overall editing of the brief. There is nothing that sours a reader faster than finding multiple editing errors. As I’ve mentioned before, typos in the Questions Presented do not give me much hope of finding an excellent brief as I turn past the first section. Over the years, students have been most frustrated when they realize that their brief did not score well because they violated the word count or lost points for some other avoidable editing issue.
Often, moot court briefs are scored separately for content and form, with a set of scorers specifically tasked with going through and looking for editing and citation issues. I always suggest doing separate editing passes to make sure that your brief is as close to perfect as possible before you turn it in.
These two blog posts by Joe Regalia go into more depth on editing word choice and using technology to uncover your writing blind spots and are worthwhile reads:
Scoring-wise, style often plays a significant role in total points. In the sample score sheet I reviewed, the Overall Presentation was worth 15 of 100 points.
Is the writing style clear, concise, and persuasive?
Does the brief effectively present the case for the client?
Does the brief look polished and professional?
(15 points possible) _________________
In another competition with separate technical scoring, every error, whether grammatical or citation, resulted in a point subtracted. That adds up quickly when every point matters. Often brief scores tend to cluster, and even a couple of stray errors can take a brief out of the running for a high score.
Here are my top tips for editing a moot court brief:
* Set an internal deadline for the team that is 48 hours before the actual deadline to leave time for additional read-throughs. Have accountability with a coach or director that the internal deadline is met.
* Every team member should read the brief in hard copy at least once. The more eyes on the brief, the better the chances of catching everything.
* Use editing technology, but don’t mindlessly rely on it. Grammarly is what I typically recommend.
* Try to edit after a good night’s rest and when it’s been a few days since you looked at the brief to give yourself better perspective and clarity on your writing.
* Double check all of the little things. Have you complied with all of the competition rules? Are the cites perfect? Are the tables organized and cited properly? Does the cover look polished and professional?
Ensuring that your brief is well-edited will not guarantee that you have the winning brief for a competition, but a poorly-edited brief will not even be in the running.
Wednesday, July 31, 2019
I often talk to my writing and appellate advocacy students about their audience, the members of the court from which they are seeking relief. I have spent most of my career working for appellate courts and, so, having been the audience, I like to educate my students about the reader’s perspective. It is hard sometimes to grasp who your audience is, or how much attention the reader pays to legal motions, memoranda, and briefs. I confess that when I was a student I used to romanticize about my reader sitting in an overstuffed, leather chair in a dimly lit room slowly perusing briefs while sipping cognac. It never occurred to me that the sheer volume of work makes that picture a ridiculous fantasy.
Let’s talk about numbers. The United States Supreme Court website tells us that over 7,000 cases are filed in the Court each term, and that, of that number, about 80 receive plenary review, with another 100 disposed of without plenary review. The Court writes thousands of pages a term, if you count all the opinions and orders. See https://www.supremecourt.gov/about/courtatwork.aspx (last visited 7/23/2019). Imagine that! Even shared amongst all of the Justices, law clerks, clerks, and staff attorneys, the volume of written work in a term far exceed what most people will produce in a lifetime.
These numbers are just staggering. Imagine having to read just a fraction of the briefs and other legal documents filed in these cases. There is nothing romantic about it. But it is awe-inspiring to consider the dedication and sacrifice involved in devoting so much of time into the cares of the litigants and the future course of this country. The same can be said about every appellate court, where incoming cases can range from a few hundred in smaller states to more than 10,000 in the largest states each year.
Keeping the sheer volume of cases in mind, over the next few weeks I will explore what we can do as appellate advocates to ease the burden.
Thursday, July 25, 2019
Welcome to Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
Today’s Rhaw Bar introduces the concept of rhetorical ontology to help explain the persuasive power of the list. In my last post, I suggested that the list has the visual rhetorical features of stacking-up and setting-off information. In this post, I explore other persuasive features of the list through the lens of rhetorical ontology.
This post is not an exhaustive introduction to rhetorical ontology: consistent with the Rhaw Bar theme, we’ll be savoring just a little ‘bite” of the theory. While some readers may be skeptical about a post that explains rhetorical theory, I think that legal communicators become expert legal communicators when they understand rhetorical theory and use it to inform their writing. Understanding rhetorical theory makes legal writers wiser practitioners of the craft; writers can make better choices because they understand—or at least have a plausible way of understanding—why some rhetorical choices might be better than others in a given situation. What I’ve learned in twenty years of teaching legal communication is this: legal communicators with a working knowledge of rhetorical theory have a multitool at their disposal; without it, they risk using the same pocket knife for everything. That is, theory provides better understanding that leads to better doing.
So, with that, let’s look at rhetorical ontology as a theory that can help develop ideas about the way lists work to persuade in legal writing.
Rhetorical ontology —also known, loosely, as the “rhetoric of things”—posits that rhetoric happens at the level of material objects, not just at the level of language. That is, rhetoric is not just about humans assigning meaning to the objects around them. Rather, “things” have their own rhetorical agency—they are agents that interact in and impact rhetorical relationships.
Because rhetorical ontology focuses on the rhetorical agency of objects, one might think that “things” are limited to non-textual objects like trees or couches or rain or the freeway. But, as Scott Barnett and Casey Boyle point out in the excellent introduction to their book, The Rhetoric of Everyday Things, the classical rhetoricians recognized the ontological features of rhetoric in texts and symbols (interestingly, in the kind of texts lawyers work with):
One of the ways Aristotle [in his writings on rhetoric] distinguishes artistic and nonartistic proofs . . . is on the basis of their thingness and material reality. Artistic proofs are those the rhetor herself invents, and they include, most prominently, syllogisms and enthememes. The forms of nonartistic proof, on the other hand, Aristotle defines as laws, witnesses, contracts, tortures, and oaths. Although each of these has a clear discursive dimension, what distinguishes them from artistic proofs is that they “are not provided by ‘us’ but are preexisting.”
So, rhetorical ontology in brief writing, for example, might be thought of as the idea that the typical features of a brief (e.g., a question presented or jurisdictional statement) have persuasive agency in and of themselves, before we as writers creatively engage them. Extending a bit further, Barnett and Boyle suggest that rhetorical things “gather” other rhetors to interact on matters of common concern. In the context of a legal document like an appellate brief, motion, complaint, answer, discovery request, or contract, the document gathers to it other rhetors (e.g., attorneys, judges, clients, property, or other documents) to interact with it in particular ways that the document itself helps to define.
So, how does a list in legal writing gather us as writers and readers to a matter of common concern in a legal document? As I alluded in my prior post, a list gathers writers and readers to it by setting off and stacking up information. The ability to use white space to draw attention to itself and to show the weight of an argument are two aspects of the list’s rhetorical “thingness.”
But, a list has other rhetorical features that reveal themselves through the lens of rhetorical ontology: lists can convey disjunction, disrupt flow, create units for analysis, flatten hierarchies, and resist narrative.
Academic and video game designer Ian Bogost in his book, Alien Phenomenology, Or What It’s Like to be a Thing, places lists in the category of “ontographs”—“record[s] of things juxtaposed to demonstrate their overlap and imply interaction through collocation” (i.e. placing things side by side). Accordingly, says Bogost, lists produce disjunction, rather than flow, in presenting the relationship between concepts. Lists, in other words, let us see a collection of things or the units of an argument, concept, or idea, without necessarily showing the flow or connections between them. Moreover, in her book chapter, Cookery as Flat Ontography, academic Katie Zabrowski Dickman adds that lists, “upon reading, are jarring. The literal flow of our reading is disrupted as we traverse the commas between words in a list both visually and with our breathing. The jarring is productive, attuning us to the distinction between objects.” Zabrowski says that lists also resist the typical narrative structure of the “story”—a structure that legal writers frequently privilege in briefs as a way of presenting the client’s case.
Two examples from legal writing show the power of Bogost’s and Zabrowski’s theorizing to explain the persuasiveness of a list.
Local Rules for Statements of Material Facts. Consider a version of the federal district court local rule that governs the features of summary judgment motions. That rule requires the statement of undisputed material facts in a motion be presented in a numbered list. For example, Local Rule 56.1(a) of the United States District Court for the Northern District of Illinois provides:
[A] moving party shall serve and file . . .a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to a judgment as a matter of law. . . . The statement . . . shall consist of short numbered paragraphs . . . . Absent prior leave of Court, a movant shall not file more than 80 separately-numbered statements of undisputed material fact.
The local rule emphasizes the lists’ rhetorical features highlighted above. First, the short numbered paragraph format dictates that the facts are detached from each other, broken apart into smaller units for consideration. This means that the separateness and isolation of each fact unit is emphasized, and a view of the facts as a whole is de-emphasized. Notably, the responding party is expected to engage the facts in the same disconnected manner, responding to each of the numbered fact paragraphs separately. Rhetorically, then, by demanding a list of facts, the rule privileges disconnection over connection, separation over integration.
Second, by requiring the presentation of material facts in a list, the rule limits writers’ ability to present facts in a narrative arc—a form that emphasizes the relationship between facts. Instead, the side-by-side nature of the list’s items makes the presentation less hierarchical; no one fact appears more important than another. The facts are presented as separate units with equal weight. By looking at the list an an ontograph, we can better appreciate how the local rule rhetorically shapes how the information in the list is structured, controlled, and ultimately perceived.
Creating Categories in Judicial Opinions. Consider a footnote that appeared in the United States Supreme Court’s recent opinion in American Legion v. American Humanist Association, where the Court held that The Bladensburg Cross, a World War II memorial displayed on public property in Prince George’s County, Maryland, was not an unconstitutional establishment of religion under the First Amendment. In his opinion, Justice Alito set out a numbered list proposing six “rough” categories of Establishment Clause cases (internal citations omitted):
(1) religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies; (2) religious accommodations and exemptions from generally applicable laws; (3) subsidies and tax exemptions; (4) religious expression in public schools; (5) regulation of private religious speech; and (6) state interference with internal church affairs.
Justice Alito then suggested the possibility of seventh category in a separate sentence, saying “[a] final, miscellaneous category, including cases involving such issues as Sunday closing laws. . . and church involvement in governmental decisionmaking, . . . might be added.”
In Justice Alito’s categorizing footnote, the rhetorical ontology of the list can be seen at work. First, using a list format highlights a point that appears important to Justice Alito in the body of his opinion—the Establishment Clause is not an abstract monolith; instead, the clause is made up of six separate categories, each of which must be considered separately. Justice Alito effectively uses the list structure to explode the abstract “whole” of the Establishment Clause and describe it as real spaces and events of the lived-in world—monuments, schools, churches, speech, and taxes, for example. By presenting the Establishment Clause as a collection of things, his opinion, then, can focus on just one of them.
Moreover, Justice Alito’s use of the list avoids the problem of creating a hierarchy of Establishment Clause categories; he does not need to explain to the reader how the categories relate to each other. While readers might infer a hierarchy or relationship between the categories, Justice Alito offers them a side-by-side equals, each apparently as important as any other, each distinct from any other.
What can we make of Justice Alito’s last and separate sentence that identifies a seventh “miscellaneous” category? This sentence, by its contrasting style, helps to show just how rhetorically effective Justice Alito’s six-part list is in avoiding hierarchy. By placing his seventh category in a separate sentence, he demotes it in relation to the other six thereby creating hierarchy. (We could also imagine a situation where separating an item from a list in this way would promote it in a hierarchy; for example, Justice Alito might have used his final sentence to say something like, “A final category, category X, is the most important one of all.”)
So, in sum, understanding rhetorical ontology lets legal writers think about the rhetoric of the “things” we encounter in documents and to imagine those things as having their own persuasive features that pre-exist and guide our interactions with them. With respect to lists in legal writing, rhetorical ontology helps us see that a list’s rhetorical “thingness” includes
• Flattened hierarchy,
• Non-narrative structure,
• Unit (v. holistic) view,
• Juxtaposition, and
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You can reach her at firstname.lastname@example.org.
Tuesday, July 16, 2019
Many arguments consist of two main parts—an articulation of the law and an application of that law to the client’s facts. I thought the second part, arguing how the law applies to the facts, is where I persuaded the court to rule in my favor. However, I’ve learned that how I describe the law, before I ever apply it to the case, is equally important for effective advocacy.
When explaining the law in a brief, attorneys draw from authority. Sources of law are often written objectively. In a brief, simply paraphrasing or quoting court opinions or statues in their objective form neglects an opportunity to tell the client’s story using the law.
In their book Just Briefs, Laurel Oates, Anne Enquist, and Connie Krontz describe several techniques for telling the client’s story with the law. These techniques focus on presenting the law from the client’s perspective.
It can be challenging to draft the law from the client’s point of view while pulling from objectively written sources. I recommend writing a clear description of the law and then editing it for persuasion.
Let’s look at an example of how to edit a statement of the law to punch up its persuasiveness.
Objective Statement of the Law (First Draft)
[I’ve omitted citations for ease of reading, though citations can also be used to persuade the court.]
Covenants not to compete within employment contracts are matters of law for a court to decide. Typically, covenants not to compete are disfavored under the law. The party seeking to enforce the covenant bears the burden of proving its reasonableness. Courts will find a covenant not to compete is reasonable, and therefore enforceable, when the covenant is “narrowly tailored” to protect the employer’s legitimate interest, the covenant does not impose an “undue hardship on the employee,” and the covenant is not “injurious to the public interest.”
Persuasive Statement of the Law (Revised Version of First Draft)
[Assume we represent an employee challenging the enforceability of her covenant not to compete with her employer. By editing the objective statement above, we present the law from the client’s perspective, which is that the covenant not to compete is unreasonable and unenforceable.]
The New Hampshire Supreme Court has repeatedly held that covenants not to compete are disfavored under the law. The unreasonableness of a covenant not to compete is a matter of law for the court to decide using a three-prong test. First, a covenant is unreasonable if it is not “narrowly tailored” to protect the employer’s legitimate interest. Second, the covenant is unreasonable if it imposes an “undue hardship on the employee.” Third, the covenant is unreasonable if it is “injurious to the public interest.” A covenant not to compete is unreasonable, and therefore unenforceable, unless the employer, as the party bearing the burden of proof, can prove all three prongs.
Checklist of Edits Transforming Objective Into Persuasive
- We reworked a sentence describing law that is favorable to our client to emphasize that this point has been routinely espoused by the highest court in the jurisdiction. While the citation would show this statement came from the New Hampshire Supreme Court, our text stresses that this portion of the law is firmly established by precedent.
- We changed the order of sentences to take advantage of the beginning of the paragraph as a position of emphasis. We start the rule strong.
- We reworded portions of the rule to reflect the outcome our client wants. We changed “enforceable” to “unenforceable” and “reasonable” to “unreasonable.”
- We made the three-prong enforceability test, which the opposing side (employer) must prove, appear more difficult to meet by breaking it into three separate sentences.
- In order to emphasize the conjunctive nature of the rule, we repeat the statement that all three prongs of the test must be met.
- We end strongly with a portion of the rule that is favorable to our client, which is that the employer bears the burden of proof. The end is also a position of emphasis.
Amanda Sholtis teaches legal analysis and writing at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. You may contact her at email@example.com.
Thursday, July 11, 2019
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law
Welcome to a new theme for posts on the Appellate Advocacy Blog: Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law. In this series, the Blog will explore ideas, theories, strategies, techniques, and critiques at the intersect of rhetoric and legal communication. Today we take a behind-the-scenes look at the rhetorical power of the “visual list” in brief writing.
In his excellent post a few weeks ago, professor and blogger Joe Regalia identified the myriad ways to use visuals in briefing, and he pointed out the “visual list” as a persuasive way to present information. He noted that the technique is particularly effective for summarizing information.
The list is perhaps the original visual in brief writing—a writer can construct a list on manual typewriter or even with pen and paper; all one needs is the ability to indent, input text, and separate list items, such as with a number or icon (like a bullet point). But why does a list work as a visual as well as a textual persuasion device? In other words, if a reader never actually reads the text of a list, would the list still persuade? Does the list have rhetorical features as a “thing” unto itself, beyond the words that compose it?
As Professor Regalia’s post suggests, a list has a visual rhetorical effect all its own. A list is effective as visual rhetoric because a list sets off and stacks up information.
1. Lists visually set off information that the writer wants to mark as important.
Lists effectively use white space to set-off information, which shows its importance. Readers, even if they don’t consciously recognize it, use white space as a cue about how to respond to text. For example, think about paragraph breaks; the white space between two paragraphs and an indentation at the beginning of the first line of the second paragraph (which itself is a unit of white space) are cues to the reader that something important is happening—the new paragraph leaves behind the original topic and introduces a different topic. And the reader gets this information simply by skimming a page; the set-off is persuasive even before the reader actually reads the text content. (Try this yourself—take a look at the whole of a page of text—what does the white space say to you?)
The message of white space to set-off text is even more pronounced with lists, particularly when a list is indented from the left margin. When the reader encounters an indented list, the reader gets an immediate cue that something is special about the ideas captured in the list; the white space around it conveys that message. This white space says to the reader “Stop! Look here! This text is different from the rest of the information on this page. It is special, so pay extra attention.” And this cue works to persuade even before the reader engages the list’s content.
2. Lists stack up points of information to visually demonstrate weight or volume.
As a visual rhetorical tool, a list can have the effect of stacking up information to convey the weight or volume of the information presented. Think of a tower of kid’s building blocks. The taller the stack, the more impressive and memorable the tower for its sheer size alone. In the context of brief writing, then, a list can visually convey the strength of a point even before the reader reviews the list’s content. For example, take this list of triggers for using a graphic from Professor Regalia’s article:
• You have data—graphs nearly always make data easier to swallow than writing about the results.
• You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it).
• You have a complex process to discuss—like an agency process, or a factual process that a party carried out.
• To show how a statute, regulation, or any other rule operates in steps.
• Any time you can use a chart to plot out a decision tree for your reader with the options laid out.
• Whenever you can come up with a visual that highlights key evidence or authority.
Now compare Professor Regalia’s same list, presented in paragraph form:
Here are some specific triggers when you might consider using a graphic:. You have data—graphs nearly always make data easier to swallow than writing about the results. You want to make comparisons, connections, or contrasts between pieces of evidence or information. This is probably the most powerful, and least used tool. A simple table can drive home points like a party failing to submit any rebuttal evidence (one side of the table is your evidence, the other is their lack of it). You have a complex process to discuss—like an agency process, or a factual process that a party carried out. To show how a statute, regulation, or any other rule operates in steps. Any time you can use a chart to plot out a decision tree for your reader with the options laid out. Whenever you can come up with a visual that highlights key evidence or authority.
Although the traditional paragraph contains the same information as the list, the paragraph makes less of a visual impact in conveying the number of situations where it would be appropriate for a writer to use a graphic in a brief. In the paragraph, the writer loses the visual impact of the “stacked” list, which, by virtue of the height of the stack, effectively conveys the many opportunities for brief writers to use graphics.
In the context of a brief, a list’s visual effectiveness in stacking up its content can prime the reader to understand the list’s content in the way the writer wants. For example, in Professor Regalia’s list above, the reader who encounters this long list is primed to believe that the circumstances for graphic use are many. In the paragraph format, however, this “stacking” strategy is less effective; it is not as easy for the reader to see, before reading the paragraph in detail, that there are many opportunities for graphic use. (This comparison also suggests that if the writer wants to de-emphasize the weight or volume of information, the reader would not choose a list format and instead keep all of the information in a paragraph.)
If we go one more step and number the list items (i.e., 1., 2., 3., 4.), the list becomes even more visually persuasive because the reader is immediately cued to the size of the stack—six uses of graphics in briefs.
So, what do these two effects—set-off and stack-up—suggest for using lists? Consider formatting information into a list to accomplish these goals:
- To give the reader the visual impression that textual information is uniquely important and should be given special attention; or
- To show the reader—through formatting—that the items in your list are weighty, numerous, or otherwise substantial; or
- To accomplish both.
Kirsten Davis teaches at Stetson University College of Law in the Tampa Bay region of Florida. The views she expresses here are solely her own and not intended to be legal advice. You may contact her at firstname.lastname@example.org.
Tuesday, July 9, 2019
Last month, there was a short article in the Chronicle of Higher Education entitled "Why Writing Better Will Make You a Better Person." In the article, two professors of philosophy who teach ethics (Bob Fischer and Nathan Nobis) put forth the idea that good writing leads to more ethical behavior, because it involves several ethical ways of thinking. The article is linked here.
In their article, Fischer and Nobis suggest that writing is an ethical activity, and that becoming a better writer can make you a better person. In so arguing, they suggest several high-level ethical norms that should motivate good writing:
- Try to do good things and avoid causing bad ones. Writing causes feelings in the reader. We should try to cause good feelings and good consequences, and avoid causing bad ones.
- Respect everyone, including your readers, as inherently valuable and rational beings. Don't waste your reader's time. Respect them enough to be clear and concise.
- Follow the Golden Rule. Treat your reader as you would like to be treated yourself. If you like straightforward, well-referenced, well-organized text, provide it to your readers.
In the end, the authors conclude that good character traits should produce good writing. Empathy requires always considering others and their needs and points of view. Compassion means you don't make your writing any more difficult to read than need be. Honesty requires the full truth, including bad facts and opposing arguments. Humility requires acknowledging that those competing arguments might have merit.
Conversely, the authors suggest that practicing these traits to be a good writer will make the writer a better person. Studiously respecting the reader, considering the merit of opposing arguments, and so on will help strengthen the corresponding ethical traits in the life of the writer.
As lawyers, we often divorce ourselves from general rules of ethics and focus on our professional rules of responsibility. But even there, we have the same obligations to fulfill. Our obligations include a duty of competency that requires thoroughness and preparation, See Model Rules of Prof'l Conduct R. 1.1, and a duty of candor, to the court and third parties, that requires us to admit factual and legal weaknesses in our arguments. See Model Rules of Prof'l Conduct R. 3.3, 4.1. And as the preamble notes, while many of the Rules govern our conduct directly, "a lawyer is also guided by personal conscience and the approbation of professional peers."
Numerous studies demonstrate further that ethical writing is more persuasive and effective. Simpler writing is more easily understand and followed by the courts. Admitting weaknesses enhances credibility, which is the coin of persuasion, while sloppiness in research or citations to facts or the law expends that credibility without reason. Our duties of competence and candor, therefore, are best served by being ethical in our writing, which also leads to the best results for clients.
It makes sense that, over time, adherence to these obligations in our writing and other client representations leads to their refinement in our characters. Ethical writing strengthens behavioral muscle that can, and should, work out in our daily lives. Conversely, unethical writing may serve as a warning sign for issues in the personal lives of counsel.
Seen in this light, teaching good legal writing to our students and young lawyers is an exercise in both effectiveness and ethics. The earlier we can convince our young lawyers of this, the healthier the bar will become.
(Image Credit: AndreasPraefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Tuesday, July 2, 2019
The record has been compiled. Your research is complete. You stare at notes you scribbled while brainstorming. Now it’s time to write the brief. Where do you start?
Honestly, I never thought much about how to start writing briefs while I was in practice. I tackled each brief from the beginning with the Caption Page. I’d skip over the Table of Contents and Table of Authorities. Then, I wrote each section of the brief in the order it appeared, saving the Summary of Argument until after I finished the Argument section. Finally, I would compile the Table of Contents, the Table of Authorities, and the Certificate of Service. It never occurred to me that there may be a different way.
When I teach brief writing, I encourage students to start writing the most difficult section, the Argument, first. If a student is struggling with writer’s block, I will recommend she begin by writing a few of the “easier” sections, like the Caption Page, Conclusion, and Statement of Jurisdiction, before writing the Argument. These “easier” sections are independent of the arguments in the brief and can be written any time. Ideally, I think writing the Argument first is beneficial for several reasons.
First, the Argument section is arguably the most important part of the brief. I encourage students to spend the bulk of their time developing their arguments and writing them when they are the freshest. When I grade the brief, I spend most of my time in the Argument and I weigh this section the most heavily. My grading practice corresponds to my focus when I worked as an appellate-court law clerk. When I read the parties’ briefs, I always started with the Argument section. I spent most of my brief-reading time engaged with the parties’ arguments.
Second, writing the Argument can take a long time. Even if you begin with a detailed outline of points, the act of writing encourages deeper thinking on the issues. You may uncover an argument you hadn’t considered when you compiled your outline. As you write, you may see gaps in your research and may need to stop writing to find additional authority. Your theory or approach to the case may change as you write. You need time for the arguments to take shape. If you start with the Argument, you give yourself that time.
Third, developing your arguments first may lead to a better overall brief and save you time. The Argument section will likely influence how you write some of the other sections of the brief. You can unify your brief around a common theme, if you understand what your theme is after you have developed your arguments. For example, you may not realize what facts are truly important to your case until you have explored all your arguments. Writing the Argument section before writing the Statement of Facts helps you distinguish between the legally-relevant facts, which should be the foundation of your Statement of Facts, and the irrelevant facts, which should be left out. If you write the Statement of the Issues after you write the Argument section, you can incorporate your theory of the case or some persuasive facts from your arguments. Also, it is easy to highlight your key points in the Summary of Argument if you have fully formed them in your Argument first.
If you write the Statement of Facts, the Statement of the Issues, and the Summary of Argument before writing the Argument, you may have to spend time revising these sections to match the Argument section. Writing the Argument section first, and using it to guide how you write the other sections of your brief, can result in a better overall document written in less time.
Monday, June 24, 2019
Have you ever picked up a book, read the back cover and immediately set it back down, with nothing enticing you to read further? An ineffective summary of the argument can create this effect in your brief.
One of the final parts of the brief to write, the summary of the argument is often the first chance to persuade the judges. But more than that, the summary of argument serves to frame and present the thinking of the brief, and it should do so in a way that draws the judge further into the brief. Some judges read the summary of the argument first, and it’s a mistake to throw something together than is bland and doesn’t get to the heart of your argument.
Judith Fischer’s 2015 article, Summing it up with Panache: Framing a Brief’s Summary of the Argument
takes a deep dive into summaries of the argument and looks at recent Supreme Court briefs’ summaries to gather insights into how appellate practitioners write them. It’s a helpful article in understanding a practitioner approach to the summary of the argument, and it’s rich in examples.
For moot court, I believe scorers are looking for the same thing that a judge would be. Does the summary of the argument give a persuasive overview of the case? Here’s an example of summary of the argument scoring criteria from a competition I have scored before:
SUMMARY OF ARGUMENT:
Is it a succinct, clear, accurate statement of the argument?
Is it persuasively written?
Is it more than a restatement of the point headings?
(10 points possible)
TOP TIPS FOR THE SUMMARY OF ARGUMENT
1. Include your theme in the first sentence or two of the summary. If I get to the end of the first paragraph and I don’t know your position, that’s a problem.
Here is a great example from Judith Fischer’s article mentioned above comparing the first sentences of petitioner and respondent summaries of argument:
Eminent domain was the legal subject in Kelo v. City of New London, where the petitioners opposed a local government’s taking of private property for use by a commercial entity. Their summary of the argument opened with an appeal to Americans’ emotional attachment to their homes: “To Petitioners, like most Americans, their homes are their castles.” The brevity of this sentence intensifies its impact.
The respondents’ summary evoked logic rather than emotion: “At the heart of this case are a series of decisions made by the Connecticut legislature and the elected officials of the City of New London as to what will best serve the economic, social, structural and environmental interests of New London's citizens.”
These sentences primed the Court for two contrasting approaches to the case. The petitioners tapped into deep-seated feelings about homes. By contrast, the respondents relied on legal principles, telling a “‘justice’ story” to argue that the city’s decision was correct despite an outcome displeasing to some.
In Kelo, the justice story prevailed when the Court approved the city’s exercise of eminent domain.
2. Keep it under about 10% of the length of the actual argument. It should be a true summary, not a full recap. Too long, and you risk losing the opportunity to give a good overview to your reader; too short, and it may not be enough to be helpful.
3. Limit citations. It will bog down the summary.
4. Don’t just restate the point headings. It’s lazy and just taking up space.
5. Make sure to leave yourself enough time to give thought to your summary of the argument once you are done with the argument.
Just like authors and editors spend significant time on the back of the book to grab readers’ attention, you should be persuading from the beginning of your brief by having a strong, concise summary of argument.
Tuesday, May 28, 2019
In my last post I talked about the importance of tailoring your arguments to your panel. This week, I want to provide some practical advice on how to get to know your justices.
The first step is to know what they have written on in relation to your case. Most likely, you are already doing this as part of your legal research. Taking the time to take notes and reference authoring or dissenting justices will let you know if one of your justices has written on your issue in the past, and the approach they have taken to similar types of analysis.
This step should be a starting place for your analysis, not an end-point. As discussed earlier, judges are people, too, and their prior opinions may give you the “what” of their past reasoning, but not necessarily the “why.” To figure that out, you have to go a bit deeper.
There are a dizzying array of resources available for that task. Be aware that some are put together with particular social agendas in mind, or based on a particular experience with a judge, and are thus likely slanted one way or another. Recourse to several tools or sources is thus necessary to get a complete picture. These resources include:
- Westlaw Profiler
- Ravel Law
- League of Women Voters
- Alliance for Justice (AFJ) Reports on the Judiciary
- The Robing Room
In addition to these online nationwide resources, you can also find background information in court biographies, state and local bar association websites, campaign websites (for those judges who are elected or retained by vote), social media websites, news outlets, and by simply “Googling” the judge. Offline, don’t forget your own network of peers who will have insights based on their personal experiences.
When you have looked over these resources, you will have a better idea of what makes your particular judge or panel of justices “tick.” You can then tailor your argument to their life experiences in a way that will help them better understand your case. Be sure to stay mindful about the proper ways to do so, as discussed earlier.
If you know of a good resource that I did not list, please let me know.
(Image credit: Gene Elderman, Washington Post, January 7, 1937)
Monday, April 29, 2019
Many of the characteristics of the best real-world briefs—clarity, strong theme, readability, focus—are critical in moot court, too. An appellate attorney and a moot court participant both want to produce a winning brief. But winning is defined differently in moot court. Rather than a panel of appellate judges or justices deciding the issues in a case, moot court briefs are scored on a point basis and compared to potentially dozens of other briefs on the same issue and even same side.
My plan over my next several posts is to compile advice for specific sections of Supreme Court briefs generally, then add some thoughts that specifically relate to moot court. I have scored moot court briefs for several national competitions and graded hundreds of students briefs over the years, and those experiences give me insights into common student pitfalls. I have also pulled score sheets from a variety of competitions to give concrete examples of moot court scoring criteria.*
We will start at the beginning with Questions Presented and Issue Statements. You know what they say about first impressions. . . It’s absolutely true for briefs. As a jumping off point and for reference, I compiled a list of many of the Issue Statement/Question Presented blog posts that have appeared on this blog.
From earlier this month, Chris Edwards on framing issues:
Tonya Kowalski’s series on (1) Deep Issue Statements:
(2) Streamlining longer issue statements: https://lawprofessors.typepad.com/appellate_advocacy/2014/01/streamlining-longer-issue-statements.html
(3) More Objective Deep Issue Statements:
Thomas Burch on which style of Issue Statement/Question Presented is used:
As you’ll see from these posts, there is not unanimity as to what format is used and preferred in actual Supreme Court briefs. But it’s helpful to get grounding in how practitioners are framing questions presented.
As for question presented scoring criteria from moot court competitions, here’s four examples with their respective point values:
Competition 1 - Are the questions posed to frame the issue(s) to be decided in a favorable manner without being
Is there a clear point of view? (5 points out of 100)
Competition 2- Do they clearly and accurately explain the issues before the court?
Are they persuasively phrased? (10 out of 100)
Competition 3- Correctly states issues
Articulates legal questions and includes relevant facts
Does not include legal arguments or conclusions
Succinct and concise (12 points out of 100)
Competition 4- Combine legal principles with key facts
Are persuasive but not conclusory
Are clear and succinct (4 points out of 100)
All of these criteria include persuasion, argumentation, or relevant facts. A neutral short framing would not fully comply. Instead, it’s likely that a well-written, Bryan Garner-esque Deep Issue, as described in the second post above, would be better scoring. My theory is the professors and students who run competitions and create score sheets have a preference for the more modern, persuasive, multiple-sentence Deep Issue. Though, I think a short, argumentative question presented with a few key facts could also score well.
Finally, there are a few key errors that will really impact the question presented score on a moot court brief. First, as a brief scorer, I gave very little credit for just copying the issue certified for appeal. That is not the task at hand. Don’t do it. Take the time to frame a well-written issue for the court. It’s possible you could lose 5-10% of your brief score by copying and pasting the issues certified for appeal.
Second, in moot court briefs there are usually two or three separate issues that need questions presented. Try to make them stylistically similar. It’s not cohesive to have one deep issue and one neutral short issue. Yes, this takes time and possibly teamwork. But your questions presented set the tone for the brief. If it’s obvious they were slapped together at the last minute, that’s not a good sign for the rest of the brief.
Third, on a technical note, do not rely on spell check for ALL CAPS in Word. If you type in ALL CAPS, spell check does not pick up spelling errors. Either proof read it carefully, or type it in regular font, then go to font and change it to the ALL CAPS. I see more typos in headings and questions presented than anywhere else because of this. A question presented with spelling errors also sets a poor tone.
Overall, students participating in moot court should start with the good advice in the posts above for practitioners about focusing and selecting the issues and framing them clearly and positively. But, since most competitions seem to prefer a persuasive style with concise inclusion of facts, I’d avoid a neutral short issue for questions presented in moot court competitions.
For those of you involved in moot court, do you have any other suggestions?
* Of course, students should try to find and refer to the score sheet of their own competition if it’s available.
Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia is a law professor at the University of Nevada, Las Vegas, William S. Boyd School of Law and regularly leads workshops training legal writing and technology. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles and writing tips here.