Tuesday, October 20, 2020
Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.
Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.
Waiver at Trial - The Monster Under the Bed.
At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.
And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.
The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.
Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.
Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.
But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.
Waiver on Appeal - The Monster in the Closet.
Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).
This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.
Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").
Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.
And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).
As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).
Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.
(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).
Tuesday, October 6, 2020
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.
Do Maintain Proper Focus:
- Do keep your purpose in mind while writing.
Why are you writing what you’re writing? What are you trying to accomplish? While the purpose of most of the writing of appellate advocates is straightforward—persuade the court and win your client’s case—we also write for other purposes. We write to clients, opposing counsel, co-counsel, court staff, prepare CLE materials, etc. We are trying to achieve different things and thus have different purposes, in writing to, or for, each of those audiences. We need to keep that purpose in mind for each thing we write.
- Do tailor your writing to your primary audience, but be aware that others may read what you have written.
We must reach our audience. We are writing for our audience, not ourselves. It’s quite easy to get caught up in our own brilliance and the clever turn of a phrase, but if our audience can’t understand what we’re trying to communicate, we’ve failed as writers.
We must strive to make our writing clear for our audience. One thing that creates ambiguity and confuses readers is vague pronoun references. When a writer uses a pronoun, she knows who or what the pronoun refers to, but it may not be clear to the reader. Take this example: “Ed and Sonny went to dinner and he ordered the fish sandwich instead of a steak.” Who ordered the fish sandwich? Because I’m friends with Ed and Sonny, I know Sonny would always choose a steak over a fish sandwich, but my reader wouldn’t know that. To make the meaning clear to my reader, I should write, “Ed and Sonny went to dinner and Ed ordered the fish sandwich instead of a steak.”
We must communicate clearly to our primary audience while remembering that everything we write has a secondary audience. Sometimes we run into difficulties when we neglect or forget about, that secondary audience. Then our writing may end up as an exhibit, as did this email from plaintiff’s counsel in an insurance-claim dispute:
This is an extreme example—although not the most extreme, even from this twenty-page exhibit. But the point remains, we must anticipate and consider a secondary audience when we write.
So, do identify the purpose of your writing and do keep your primary and secondary audiences in mind while writing.
 Alexa Z. Chew and Katie Rose Guest Pryal, The Complete Legal Writer, 5 (Carolina Academic Press, 2d Ed. 2020).
Tuesday, September 29, 2020
When I was in college, I had the opportunity to sit and talk for a bit with Ray Bradbury after he gave a lecture on writing. His first advice on writing? "Write the damn thing!" It will probably be garbage, he continued, but you need something to start with. Because, "Good writing is rewriting."
I later learned that Bradbury practiced what he preached. He had a note posted over his typewriter that just said "Don't Think!" But he also was a stickler for rewriting. When he first wrote "Something Wicked This Way Comes," the draft stood at 150,000 words. He then cut 50,000.
Recently, I was reminded of that conversation when, after learning of her passing, I re-read Justice Ruth Bader Ginsburg's interview by Bryan Garner in The Scribes Journal of Legal Writing. She was deeply influenced in her writing, she said, by one of her professors - Victor Nabokov. And Nabokov once said:
“I have rewritten — often several times — every word I have ever published. My pencils outlast their erasers.”
This training led Ginsburg to work "very hard" on every opinion she wrote, going through "innumerable drafts." Her goal was clarity, and that clarity took a great deal of work. Her oftentimes ideological opponent, and friend, Justice Antonin Scalia, agreed in his interview, admitting that he was not a naturally facile writer, and that he continued working on drafts until they took them from his hands.
I take a great deal of comfort from this exchange between Garner and Scalia:
BAG: Do you think it’s often true that the less facile writers, the ones who really struggle with it the most and put the most effort into it, are the best writers?
AS: I think it’s probably almost always true.
BAG: It just looks easy.
AS: It just looks easy. Yeah. Yes, I don’t believe in the facile writer. Maybe there’s one or two out there, but . . .
One of the greatest compliments I can be paid by a client is often accompanied by a criticism. I know I have done my job well when a client reviews a brief I have written and then expresses dismay when they see the time I spent on it, because the ultimate product makes everything seem so simple. But trust me, it just looks easy.
The picture at the top of the article is ancient. It is a painting from about 500 BC of a scribe using a wax tablet. Wax tablets had two great advantages at the time: You could write quickly on them, and you could even more quickly melt away the words you had written. The modern tablet is even faster at both tasks. Don't ever feel bound by that first draft when it can so easily be melted away and improved.
As I work on a brief this week, those reminders have helped me focus in on what matters. I am working diligently, because I am not, naturally, a facile writer. I am putting down thoughts on paper quickly, and then rewriting painstakingly.
Because, after all, good writing often requires requires a great deal of editing is re-writing rewriting.
(Image attribution: Pottery Fan: photo of Greek art created about 500 BC by Douris / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0))
Saturday, September 26, 2020
Once again, we find ourselves at the end of a week full of heavy news. While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter. If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal: https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf.
In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear. See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition). The sample also helps litigants include all opening brief sections required by the California Rules of Court.
For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument. In two sentences, the sample summarizes the parties’ status and introduces the important facts:
The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.)
The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs.
The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.” In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener. For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’ (RT 25-26.)” Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.
As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action:
While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format. Finally, the brief concludes briefly, as all appellate writing should. Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief: “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”
Hopefully, the fairy tale context of the Court’s sample will make you smile. But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format. The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.
Saturday, September 12, 2020
Every year, I ask my students to read a variety of articles on the use of language, especially passive voice. For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was. See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).
This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless. Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less. Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.” But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons.
As Rockmore explains, we stress good writing for clarity. She notes: “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.” Rockmore, How Texas Teaches History. Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.” Id. For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id. Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.” Id. As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers. Id.
As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please). We should all do the same with our own appellate documents, even when our use of passive is less insidious. We’ll save words for more content, and we’ll communicate more clearly.
Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.
Sunday, September 6, 2020
In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.
Then, Judge Reeves let the officer off the hook.
Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.
By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation. The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever. Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search. To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”
Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.
To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.
The praise afforded to Judge Reeves’s opinion, however, should stop there. Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.” Professor Kerr further stated as follows:
My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’
For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.
More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.” Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law. The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?
Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”
Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.” But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong.
Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.
 Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)
 See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp
 See id.
 See id.
 Id. (internal citation omitted) (emphasis in original).
 Id. (emphasis in original).
 Jamison v. McLendon, 2020 WL 4497723, at *29.
Tuesday, September 1, 2020
Classical English Style, by Ward Farnsworth, is another must-have for the library of an appellate advocate. Farnsworth, who is Dean and John Jeffers Research Chair in Law at the University of Texas School of Law, has written an engaging, easy to read guide to English style that adds to his works on persuasion and rhetoric. The text includes examples, mostly from the eighteenth and nineteenth centuries from well-known stylists such as Abraham Lincoln and Frederick Douglas. It also includes examples from Shakespeare and the Bible alongside more modern examples from Franklin Roosevelt and Churchill.
Farnsworth begins, where we all must: Simplicity. “There are two ways to say almost anything in English: with little words or big ones.” The book discusses how the English language developed from words with Germanic or Saxon roots and words with French or Latin roots. Saxon words tend to be shorter and more direct and thus, should be preferred by writers. He provides a list to demonstrate:
Next, the author discusses word choice and rhetorical devices such as metonym and hyperbole and how to use those devices to great effect. He then turns to sentence structure and length and provides examples of the effective use of variation to engage and persuade. A discussion of passive voice includes examples of its effective use.
The final third or so of the text discusses rhetorical devices such as anacoluthon—a technique to challenge readers to think more deeply or to represent stream-of-conscious thought; rhetorical instruction and announcement; and cadence.
One thing the text lacks is annotations to the examples. While the text often discussed the use of techniques in the examples, it would have been helpful to visually highlight the use of different techniques in a few of the examples in each section to draw the reader’s attention to the technique. This is a small quibble, and perhaps reflects more on this author’s shortcomings than on the text.
Classical English Style will help improve both written and oral advocacy; Farnsworth writes in a clear concise style—himself a model of classic English style.
 Ward Farnsworth, Classical English Rhetoric (2016); Ward Farnsworth, Classical English Metaphor (2010).
Saturday, August 22, 2020
The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community. United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order. In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings. In form, the slip opinion has a great deal to teach us about writing.
If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion. The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.
Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing:
Clarence Jamison wasn’t jaywalking.1
He wasn’t outside playing with a toy gun.2
He didn’t look like a “suspicious person.”3
. . . .
Jamison, 2020 WL 4497723 at *1-2. Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.” Id. at *1 nn. 1-15. The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years. Id. at *1-2.
Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:
Clarence Jamison was a Black man driving a Mercedes convertible.
As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.
Nothing was found. Jamison isn’t a drug courier. He’s a welder.
Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.
Id. at *2.
The court finished the introduction with a traditional roadmap. Judge Reeves explained the overall role of precedent and stare decisis, stating: “This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.” Id. at *3. But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.” Id. Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction: “This has to stop.” Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).
In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity. Then, ending the slip opinion with a specific call to action, Judge Reeves charged us: “Let us waste no time in righting this wrong.” Id. at *29. At least one court has already cited the slip opinion. See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”).
Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity. But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.
Saturday, July 25, 2020
Tired of seeing yet another post on how to ______ [fill in the blank: teach, write, argue, live] in our new virtual reality? Exhausted from never leaving your home and Zooming all day? Me too.
In fact, I was reluctant to write one more blog on online writing tools. However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom: Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/. These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others. They also reminded me how much any law practice can increase attorney writing skills by using peer review. See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011) https://eric.ed.gov/?id=EJ933615
As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners. While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice. When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer. Eli Review has a nice blog post on this “giver’s gain.” https://elireview.com/2017/03/28/givers-gain/.
My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors. Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation. However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work. This review can actually save fees, by shortening partner review time, and can help create better briefs across the board. And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.
In the digital classroom, we can use technology to enhance the peer review process. Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community. Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo. Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.
From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment. Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades. The whole process can be anonymous. Professors using these programs raved about the technical support and positive student feedback from both. Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year.
The genius in each product is the science and math behind the assessment scores and review prompts. Each product truly helps students grow as writers by combining the established science on peer review and some neat online features. The math and engineering majors in my home called the programs “elegant.”
For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review. Then, each student grades the reviews he or she received on a 1-7 scale. Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score. The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review. Peerceptiv docs points when a review or assignment is late. See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.
If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review. Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments. Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars. See https://elireview.com/learn/how/. This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work.
This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring. I plan to use Eli Review only for anonymous, ungraded work. My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems.
Thanks for reading another note on online writing tools. I wish you all good health, and a safe trip outside sometime soon too.
Saturday, July 11, 2020
We are thrilled to welcome Professor Susan Smith Bakhshian of Loyola Law School Los Angeles as our guest author. Susan has taught LRW and doctrinal law for many years at Loyola, where she is a Clinical Professor of Law and Director of Bar Programs. She is the co-author of Clearing the Last Hurdle: Mapping Success on the California Bar Exam. This summer, she taught entirely online using Brightspace and Zoom. You can reach Susan at email@example.com.
Caution Ahead: Breakout Groups Can Fail
Breakout rooms are great. But. Wait for it. They can fail. Break out rooms are terrific for everything from a way to let students chat and get to know each other, to in class exercises and writing assignments. And the experience is usually great.
Breakout rooms are not a substitute for physical classrooms, but they can give students a few minutes to socialize, provide variety in instruction, and accomplish learning objectives.
So when do breakout rooms go wrong? Groups can go wrong a variety of ways. While the tech can fail, which is a new problem, the other failures are nothing new. A student may decline to participate fully. Group dynamics can unravel. Disputes can arise.
An ounce of prevention is worth a pound of cure. Groups need clear instructions to stay on track. Using a slide in class or posting a handout before class goes a long way to making sure students understand that breakout groups are real assignments and not a class break. By posting slides before class, shy or anxious students are able to preview the group assignment and more fully participate in class.
Pop in. Video conference software simulates walking around the room. Once students realize the professor might drop in the group, they stay on track. This feature is especially helpful when I see that the random assignment has created a group of several weaker students or one with too many natural leaders. I usually go to those groups first. Even if all of the groups are doing fine without any help, I also just like to say “hello.”
Require a deliverable. If the groups know going into the exercise that a written product is due or that anyone in the group may be called on, they will stay on task better. Formal and informal deliverables both work well. Ask for each group to craft an email to the professor, require a post, or ask the group to return to the full class ready to answer a question or present their best ideas.
For those who have not tried a breakout room, an easy, but effective assignment is to have the groups make a list of best (and worst) practices for online learning. They have great tips for each other ranging from natural lighting solutions to how to use the “hide my video” feature to get more comfortable being on video. This assignment works as an ice-breaker in an early class or anytime you want to cover professionalism. As attorneys, they will need to be proficient at using video conferencing software, even after a return to more live interaction. A quick mention that job interviews may be online gets everyone in the group more interested in discussing best practices.
Bottom line, breakout groups are flexible and effective in online teaching.
Tuesday, July 7, 2020
Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.
For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.
II. How to use visuals effectively.
To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.
From my survey, I have identified a few overarching lessons about effective use of visuals.
First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.
Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.
Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.
Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.
Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.
Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.
III. The future of visuals
While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.
Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link. But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.
Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be. One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”
Another scholar speculates that other embedded technology in briefs might include, among other things:
- Graphics Interchange Format, or GIFS;
- 360-degree panoramas (of accident scenes, etc.);
- Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
- Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.
As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.
If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,” podcast links, and even virtual reality experiences.
For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you!
 See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.
 See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.
 Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).
 See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).
 Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).
 Id. at 1693.
 See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.
Sunday, May 31, 2020
Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.
Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.
I. The Drafting Stage
The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.
In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.
After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”
II. The Rewriting Stage
The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:
- Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
- Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
- Eliminating unnecessary repetition;
- Eliminating irrelevant facts;
- Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
- Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.
Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.
III. The Revision Stage
During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:
- Making paragraphs and sentences shorter;
- Varying sentence length;
- Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
- Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
- Including transition words to ensure flow and clarity;
- Eliminating words that convey ambiguous or unintended meanings;
- Reducing the number of quotes;
- Deleting repetitive sentences;
- Eliminating cliché phrases and colloquial language;
- Ensuring that your brief is written in the active voice (for the most part);
- Using the CTRL+F feature to search for overused and unnecessary words; and
- Submitting your document to an online editing service, such as Grammarly.
Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.
Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.
Tuesday, May 5, 2020
Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana, which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style that are always smoldering on #appellatetwitter.
Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.” Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.
Garner co-authored Making Your Case: The Art of Persuading Judges, with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations. Of course, Garner argued for the use of footnoted citations; Justice Scalia, “disapprove[d] this novel suggestion.” So let’s review some of the pros and cons of both and then you decide which you favor.
But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority. The latter is important because it helps the reader evaluate the relative value of one authority as compared to another. We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted? So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.
Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority. Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.” This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.
Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation. So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S. 209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.
The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.” Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.
Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc., with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.
 No. 18-5924, slip op. (U.S., April 20, 2020).
 Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.
 Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418
 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).
 Id. at 132-35.
 Id. at 132-33.
 Id. at 133.
 Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).
 See id. at 881.
 Scalia & Garner, supra note 5, at 132.
 431 U.S. 209 (1977).
 Scalia & Garner, supra note 5, at 134.
 No. 18-1233, slip op. (U.S., April 23, 2020).
Sunday, April 19, 2020
In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.
Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome.
Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.
1. Tell a story
In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:
When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,
When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”
The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.
Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language.
Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.
2. Don’t be argumentative
One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.
3. You can – and should – still advocate
Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.
4. Acknowledge unfavorable facts
Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.
5. Eliminate irrelevant facts
You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:
The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.
6. Describe the record accurately
Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.
7. You can include law in the facts if it's appropriate
When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:
On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.
As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.
8. It's not just what you say, but how you say it
Be sure to draft a well-written, well-organized, and concise statement of facts. For example:
- Avoid long sentences (over twenty-five words)
- Avoid complex or esoteric words (and Latin)
- Use transition words to ensure flow and clarity
- Avoid unnecessary repetition
- Avoid long paragraphs (paragraphs should be approximately three to five sentences)
- Eliminate unnecessary adjectives and minimize the use of adverbs
- Avoid nominalizations
- Never insult the lower court or your adversary
- Ensure that your brief is free of spelling errors and grammatically correct
- Know when to break the rules to maximize persuasion
Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.
Tuesday, April 14, 2020
Mandamus is, and should be, a rare remedy. Over my years of practice I have filed mandamus less than twenty times in state or federal courts. Yet I have done so three times, and almost a fourth, in just the last six months. As a result, I have had a chance to ponder the unique nature of this remedy and want to offer a few tips if you find yourself having to file this unique "appeal."
In federal court, the All Writs Act (28 U.S.C. § 1651(a)) grants federal appellate courts the power to issue writs of mandamus. Mandamus is intended to be an extraordinary remedy, used only in exceptional circumstances that arise from emergencies or issues of national importance. LaBuy v. Howes Leather Co., 352 U.S. 249 (1957). If there is any other remedy by appeal or award (such as a money judgment for damages) the remedy is not proper.Most state courts have similar jurisdiction and follow the same general rules.
The error challenged must also generally be "clear." This means, in most cases, that only ministerial duties can be challenged. If there is even a hint of discretion in performing the challenged act, mandamus will likely be denied.
In general, the suit is filed against the officer that abused their discretion. You are thus essentially "suing" the judge, clerk, or other official that clearly violated their duty.
Mandamus must also generally be filed quickly. While there is no deadline in most cases, there is a form of laches applied to mandamus by most courts. And mandamus is often used in situations where an injunction or other order has gone into effect or will go into effect in hours or days.
Mandamus thus offers a unique drafting challenge. You must act quickly. In some cases, within hours of the challenged action (or inaction). Yet you must show that the error is clear, and that there is no other remedy than mandamus. And you must provide all of the record information necessary to support the arguments raised, often without benefit of an official record.
This flies in the face of the usual appellate-lawyer temperament. We are, by and large, a careful and deliberate crowd. Mandamus requires us to shoot from the hip, but still hit the target squarely.
To do so, you must be ruthlessly clean and simple in your analysis. String cites, deep-dive analysis, and policy arguments must often be discarded in order to cut to the point. And subsidiary arguments are often discarded in favor of a clean main point.
To make sure that my point is cleanly delivered, I try to focus in on a clean statement of the issue and on headers that deliver the entire argument in themselves. I know that the court is likely to start with the table of contents, so I want that table of contents to deliver the argument well. If there is a subsidiary issue that is not addressed in the headers, it should be cut or relegated to the footnotes.
Every necessary point is also made explicit. I do not leave to chance that any part of my burden for mandamus will be rejected. So the lack of adequate alternative remedies is a header. So is the timeliness of the challenge. And the error is explained with subheaders parsing out each step of the analysis.
If I am seeking emergency relief in addition to the mandamus that requires immediate action by the court, I state this explicitly in the mandamus, near the beginning. I then file the motion for emergency relief with the mandamus, if at all possible, so that the court has full briefing on why the emergency relief is necessary.
Finally, and this is the most challenging part for me, I try to stop editing when the mandamus is "good enough." Because of sharp time constraints, a few maxims should be kept in mind:
- Voltaire: “The best is the enemy of the good.”
- Confucius: "Better a diamond with a flaw than a pebble without."
- Shakespeare: “Striving to better, oft we mar what's well.”
You must edit and clarify with great care. But you also must know when to quit. In a mandamus, this may mean that you only have a few drafts before you must file.
This is the hardest part of a mandamus. You are already somewhat uncomfortable with the idea that you are filing an "extraordinary writ" with so few rules and procedures to guide you. You are probably uncomfortable with the idea of "suing" a judge you may be appearing before again (although you are always carefully challenging the ruling, not the officer). And now, in doing so, you must act quickly and without the comfort of repetitive drafting over time.
But that is the challenge of mandamus. Quick, accurate, and simplified arguments are key. In learning to do so, you may learn to apply those principles to the rest of your work.
Sunday, March 29, 2020
The spread of the coronavirus has resulted in law schools transitioning to online learning. The delivery of legal education online certainly presents challenges for law students and legal writing professors (and professors generally). Below are tips (some rather obvious) that can hopefully contribute to facilitating a reasonably smooth transition to teaching legal writing online, and in a manner that: (1) maximizes students’ attainment of relevant learning outcomes; and (2) creates a supportive learning environment.
1. Be clear about the requirements and expectations going forward
The spread of the coronavirus – and the transition to online legal education – will cause many students to experience increased stress, uncertainty, and anxiety, the severity of which will vary based on each student's circumstances. Indeed, these effects will impact some students more directly and substantially than others.
To facilitate the transition to online education, professors should communicate clearly to students the requirements and expectations regarding assignments and grading, particularly if assignments or grading policies have been modified. For example, many law schools have decided to transition to pass/fail (or credit/no credit) grading for all courses. As such, professors should explain to students the criteria that distinguish passing from failing grades (e.g., a passing grade is the equivalent of a ‘C’ or better).
2. Provide students with writing checklists to make them aware of your grading criteria and to help students edit their work
Professors should consider creating a one or two-page checklist that sets forth the criteria (essentially, the rubric) that they will use when assessing the students’ work. Doing so will enable students to focus their writing and editing on the most relevant aspects of an assignment (e.g., effective topic sentences, proper IRAC structure), and help them to produce their best work.
3. Draft a one or two-page summary each week highlighting the major points of that week's classes
As stated above, the transition to online learning will likely cause many students to experience increased stress and anxiety due to, for example, increased family obligations and financial difficulties. Indeed, students may have less time to devote to their studies or simply struggle to focus on their work, particularly if they are living with family members or home-schooling children. For these and other reasons, students may struggle to complete reading assignments or otherwise dedicate sufficient time to mastering the material.
Drafting a one or two-page summary of the major points covered each week (with examples) will simplify the material and help students focus their attention on the most relevant legal writing skills.
4. Shorten the remaining assignments
In courses where students are required to write, for example, a pre-trial motion, appellate or trial brief, professors should consider shortening their assignments if the circumstances warrant. For example, professors may consider requiring students to write only the legal argument section of a pretrial motion or appellate brief. And professors can consider incorporating smaller, problem-based assessments to focus on areas that may not be required in a summative assessment.
5. Consider reducing or even eliminating the research aspect of an assignment
Some students will have reduced access to internet service and to electronic platforms such as Westlaw, Lexis, and Casetext. As such, professors should consider closed universe assignments that provide students with relevant legal authority.
6. Be as accessible as possible and provide as much feedback as possible
The transition to online learning will significantly impact students’ ability to meet with their professors for individualized feedback and support.
Two approaches may lessen the resulting impact on students. First, professors can hold a few optional classes for the entire class, in which the professor provides generalized feedback on the students’ work and offers suggestions for improvement. Second, professors can, at the outset of online learning, hold 10-minute conferences in which the professor provides support and feedback to each student (based on, for example, prior assignments). And in providing feedback, be mindful that students lack access to some, if not all, of the support services (e.g., a writing center, face-to-face interaction, academic success) that were previously available. This should cause law schools who remain on a grading system to consider adjusting their grading curve upward or permitting students who are particularly disadvantaged the option to take one or more courses on a pass/fail basis.
7. Consider holding online legal writing classes only once per week
This suggestion may not apply to some law schools, but at law schools where legal writing courses are held two or more times per week, professors should consider switching to a once-a-week format. Doing so will enable law professors to devote sufficient time to discussing the relevant material and reduce the burden on students who may struggle to coordinate their schedule in light of personal circumstances.
8. Take ten minutes at the end of each class to show that you care
Certainly, this is a difficult time for law students and law professors. One way to help students is to devote ten or fifteen minutes at the end of each class to simply asking the students how they are doing and encouraging them to share their respective experiences. Doing so will help to create a constructive ad supportive learning environment.
9. Be optimistic and inspire students
Many students will probably rely to some degree on professors and others to provide support during this difficult time. This places professors in a position to offer encouragement, optimism, and inspiration to their students, and to show students that they can succeed despite adverse circumstances.
10. Balance compassion with rigor
Certainly, this is an extraordinary time that requires compassion and understanding for students. At the same time, compassion should be balanced with rigor. Professors should continue to challenge students to put forth their best effort and reward those who produce the highest quality work. Indeed, just as this is a time for compassion, it is also an opportunity to teach students that, no matter what circumstances they may face in life, they must possess the mindset and coping skills to succeed despite adversity.
11. Take care of yourself
Law students and law professors should be particularly mindful of their physical and mental health during this period. Exercise. Eat healthy foods (and junk food in moderation). Practice mindfulness techniques. Communicate with friends and family. Do things that make you happy (listening to Elvis Presley’s music is likely to create substantial happiness) and remember that this, too, shall pass.
Monday, March 16, 2020
Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.
Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)
In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.
Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)
In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.
Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)
Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.
Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)
Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.
Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)
Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.
Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)
In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.
Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)
Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.
William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)
The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.
Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)
Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips.
Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)
In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.
Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.
Tuesday, March 3, 2020
Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.” But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed. Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.” Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.
In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.
West Branch involved the non-renewal of a teacher’s contract. The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure. A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.
The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code. In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal. The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.
The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance. The school board's superintendent denied the grievance and the association then submitted a request for arbitration. That prompted the school board to file a lawsuit to enjoin the association from going to arbitration. The trial court granted a permanent injunction in favor of the school board. The association appealed the trial court’s judgment.
The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion. The association, however, argued that the court of appeals should review the trial court’s judgment de novo. The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement. The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo. The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment, a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.
 Standard of Review, Black's Law Dictionary (11th ed. 2019).
 Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).
 Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).
 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).
 Id. at 553.
 Id. at 552.
 Id. at 555.
 Id. at 555-58
 Id. at 552.
 Id. at 553.
 Id. at 554-59.
Friday, February 28, 2020
Every appellate practitioner knows oral argument rarely changes a case outcome. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument. This time can be hard to justify to clients, but an advocate must be prepared for oral argument. See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).
In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing. For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief. Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.
In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar. My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place. This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page. Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument. The binder should be tabbed and organized for very quick reference. The process of making the binder is also very useful for both final brief editing and oral argument preparation.
On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court. Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early. See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020). Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table. One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points. Advocates also have an organized binder if they do need to check something quickly.
In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side. The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief.
I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents. Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading. I ask my first-year students to make this page before turning in their briefs. I suggest they then use the paper as an editing checklist for the brief. The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing. Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.
In the law school setting, making the oral argument sheet before filing the brief is also efficient. First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument.
In practice, however, we often wait months after filing a brief for oral argument. Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice. By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument. Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time. Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.
For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder. Doing so can show where you have missed something in briefing and can save time later.