Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, February 26, 2024

(Nearly) Everything You Need to Know About Legal Writing You Learned in Kindergarten

My almost six-year-old is in the middle of learning to read and write in kindergarten. I love seeing him pick up books around the house and start reading. He has also brought home several writing projects.  As I watch him learn to write and hear his teacher’s pedagogical approach to reading and writing, I am discovering that some key points that I try to teach the “big kids” (aka—my law students) find their origins in kindergarten.

Point 1: Tell a story. Much of my son’s writing accompanies some sort of picture. The goal is to draw a picture and then write a story that describes the picture. This is not dissimilar from the approach my son’s teacher has used with reading—kids are encouraged to use “picture clues” to help identify unknown words.  Similarly, storytelling is an important aspect of legal writing. Legal writers can use various parts of a brief—like the introduction or the statement of the facts—to paint a word picture about their client. Increasingly, it is becoming more acceptable for legal writers to even use actual pictures in briefs to show the judges key aspects of a case.  Likewise, in the argument section of a brief an author might use writing conventions like analogy and metaphor to help the audience understand key legal principles.

Point 2: Think about the role of punctuation. A few months ago when my son and I were reading together, he paused when we came to a set of quotation marks and informed me that the words in the quotation marks needed to be read in a different voice. He then proceeded to create a voice for the character and read the words. I was impressed that he recognized the role of quotation marks in a story. He is starting to recognize other forms of punctuation too.  For example, he knows that an exclamation point signifies emphasis. We haven’t started on the Oxford comma yet, but it is only a matter of time.

Punctuation plays such a key role in legal writing. While judges probably don’t read the quotations in your briefs using character voices, they do expect your quotations to be accurate and relevant.  Your reputation depends on it.  They also expect you to use limited quotations—only directly quote key language that can’t be summarized, like contract or statutory language. Long block quotes just don’t get read.  Other aspects of punctuation are important too—the Oxford comma, limiting the use of emphasis, and the proper use of dashes. If you need a refresher on punctuation, I highly recommend my colleague Diana Simon’s book The (Not too Serious) Grammar, Punctuation, & Style Guide to Legal Writing.

Point 3: Watch your capitalization. While my son generally understands that there are capital and lower-case letters, he uses them inconsistently. He is just starting to understand that sentences start with capital letters, as do some words. One of my major pet peeves when it comes to legal writing is the inconsistent use of capitalization. I consider myself to be a capitalization minimalist—when in doubt, don’t capitalize! However, I tell my students that I will generally only mark things incorrect if they are inconsistent when they capitalize. So, if you decide to capitalize something in your brief, be consistent.  It will make your brief look more polished.

Point 4: Think about the aesthetics of the page. Kindergarteners struggle with writing an aesthetically pleasing page. If I give my son a piece of unlined paper, his words and letters vary widely in size. With lined paper, his letters are more consistently sized, but he struggles with spacing between words. His words are either too close together or too far apart. His teacher has popsicle sticks in the classroom that he and his classmates can use to leave proper spacing between words—she calls them “spacemen.”

While I want to write an ode to two spaces after a period for this point, I am going to resist.  Rather, legal writers need to be mindful about how their words appear on a page, especially in the age of the digital reader. Pages should include sufficient blank or empty space to not overly stress the eyes. Paragraphs should be short.  Spacing should be proportional. A nicely formatted brief that complies with court rules makes a great first impression.

Point 5: Do you own work. A few weeks ago my son brought home a worksheet that had a small section crossed out. His teacher had written a note that he had copied off a friend. It was pretty apparent that the friend he had copied from was not as strong of a writer. Trying to suppress laughter, we talked to our son about the importance of doing your own work. Similarly, legal writers need to do their own work. That means don’t plagiarize and don’t blindly rely on AI. If your name is on a brief, you should feel 100% confident about every case citation and legal principle. Your reputation depends on it.

February 26, 2024 in Legal Writing | Permalink | Comments (1)

Saturday, February 17, 2024

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience.  While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments.  As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.”  See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024).   The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance.  Id. 

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts.  See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024).  According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders.  Here is America First Legal’s misconduct complaint to the Seventh Circuit.  Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders.  Their letter is here.  The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy. 

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged.  For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.”  Raymond, Republican US Senators.  Most court rules following the ABA’s resolution are facially neutral, but not all.  See generally Buble, GOP Sens

Whatever the fate of the three Southern District standing orders, experienced lawyers should  work to be stronger mentors.  We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs.  In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time. 

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Saturday, January 20, 2024

An Appealing Definition of Persuasion

Happy 2024!  I hope you are off to a productive and healthy new year. 

In my classroom, we started the new year with a move to persuasive writing.  I began class with a discussion of some differences between argument and persuasion.  My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division.  Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.  

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.”  We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.”  See https://www.merriam-webster.com/dictionary/argument.  Then, I suggested my definition of persuasion.  I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.”  We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts.  (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.”  See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference.  Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients.  On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion. 

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing.  Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.”  https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2.  Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching  intro hooks, something I also stress in my persuasive writing teaching.  However, I soon realized several of these students also wrote first drafts less focused on deep analysis.  Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases.  This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.  

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach.  Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law.  Their papers suggested a result on appeal based on their analysis of the facts only.  In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.  

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample.  Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases.  Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly. 

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write.  As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

January 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, January 14, 2024

Don’t Overlook Credibility as a Key Factor in Your Reply Brief

Reply briefs provide an advocate with a welcome opportunity to recapture the momentum established in the opening brief. A good opening brief makes a powerful case for your position that, standing alone, ought to spell success. Your opponent’s response brief follows by seeking to arrest the gravitational pull of your opening arguments and lead the appellate panel in a different direction. The reply, the advocates’ last word before oral argument, should attempt to regain your advantage by refuting your opponent’s counterarguments and new points, as well as providing the court with a sense that you bring greater credibility to the applicable caselaw. Credibility can make the difference. Judges will discount an otherwise compelling argument when the advocate has made statements elsewhere that are false or unsupported by cited authority, causing a jurist to doubt the presentation.

A reply brief can employ tools that may help win the gold star of credibility. One way to win the credibility battle is to highlight your opponent’s concessions, which may imply that your arguments are correct at least as far as they go. Those concessions can come in the form of factual agreements even when your opponent argues against the significance of those facts, opening the door for you to emphasize their significance in reply. Concessions can also consist of statements that agree with your identification of relevant precedent, allowing you to explain the case and its meaning for your dispute even more pointedly. 

Another form of concession occurs implicitly when the response brief omits any response to a material point you have made. That omission occurs with more frequency than you might imagine. Caselaw in nearly every jurisdiction treats that omission as either waiving the argument or, with much the same effect, a concession. A reply brief should call attention to the lack of response, which also serves to remind the panel of the key nature of the point overlooked by your opponent. Your opponent’s silence, then, becomes a powerful point in your favor.

Another tool in the credibility battle comes from showing the care you took in mustering caselaw without overstating the holdings. Your precision, in comparison to your opponents’ hyperbolic or rhetorical excesses, will work in your favor as the court reads the briefs. Your opponents’ exaggerated and emotion-laden presentation will hold less weight when contrasted with your more lawyer-like, straightforward presentation of arguments framed in terms of the record and the authority that a court should consult. For example, where your opponent calls an argument “made up” or “ridiculous” or engages in ad hominem attacks, it may behoove you to quote their overwrought response and demonstrate that their characterization or problem questions not you or your argument as much as it expresses their misunderstanding of the undisputed record or the meaning of precedent, allowing you to explain in plain yet powerful words the existing facts or applicable law.

Less overblown, but equally problematic, are distortions of your argument that the other side might attempt to show that it makes little sense. When that occurs, a reply brief should explain how the other side either purposely misrepresented or otherwise misunderstood your argument. Doing so allows you to restate the premise of your argument to assure that the court understands it as intended and that it provides no basis for the criticism your opponent mounted. And, in those instances where opponents misrepresent or misunderstand the argument, you can also demonstrate anew its validity and applicability by showing that their reading is far from what you argued or constitutes a wild and unwarranted extrapolation from it.

A final consideration in establishing your greater credibility: read the response brief from the perspective of a judge unfamiliar with the case or the relevant precedents. From that reading you will likely identify between one to three points that raise understandable doubts about your argument. Those points, then, become the questions that the judge probably will expect answered in the reply – and setting out those questions and compelling answers to them in an introduction, particularly where you can use the other credibility tools mentioned here throughout the brief, will bolster your credibility. Often, credibility serves as the key to success in an appeal.

January 14, 2024 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, January 8, 2024

A Fascinating Interview with the Texas Supreme Court

What would you ask if you had the opportunity to interview a state supreme court justice? Would you ask about the justice’s path to the bench? How the justice writes a good opinion? What the justice does when he disagrees with his colleagues?  How the justice works with his law clerks?  Or maybe you would ask what the hardest thing about being a justice is?

How would those questions change if you were 9?  Well, for Emily Caughey the questions wouldn’t change at all!

Last year then 9-year-old Emily came up with the idea to interview justices on the Texas Supreme Court. Her goal was to make a video that would teach kids about the judicial branch.  She drafted serious questions, like the ones listed above, but also fun, kid-friendly questions. She also enlisted the help of her then 7-year-old brother James. The result is a delightful, well-edited video that includes interviews of five Texas Supreme Court Justices.   According to her mom, Jennifer Caughey, a former Justice on Texas’s First Court of Appeals and the chair of Jackson Walker’s appellate section, Emily has “been sharing the video with schools in an effort to expose kids to the Texas Supreme Court.”  Go Emily!

The whole video is worth watching. Highlights include learning what two justices aspire to the same superpower and what two justices both wanted to be professional baseball players. I also enjoyed hearing the justices’ fun facts about the Texas Supreme Court.

Thank you Emily for spearheading such an innovative project, and thank you justices for being generous with your time.  For what it is worth my favorite ice cream flavor is Blue Bell’s Chocolate Peanut Butter Overload.

January 8, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Monday, December 25, 2023

A Big Christmas Present for Skills Professors?

Merry Christmas and Happy Holidays from the Appellate Advocacy Blog.

The Council of the ABA's Section of Legal Education and Admissions to the Bar may be giving skills faculty at law schools a late Christmas present.  The Council is considering revisions to Standard 405 that would provide more job protections for skills professors. In short, the changes would require law schools to offer skills faculty tenure-like job protections. You can read a memo on the changes here. The Council is accepting comments on the revisions until January 8, 2024. Instructions for submitting comments are in the memo.

Overall, I am pleased with the changes, but as I explain in my comments to the Council, I don't think that the changes go far enough. Having left a tenure-track job for a job with clinical tenure, I have seen firsthand how clinical tenure can promote inequities at law schools. 

I encourage those interested in these issues to review the proposal and consider submitting a comment. My comments are below.

***

Dear Chair McCormack:

I am writing in support of the Council’s proposed revisions to Standard 405. While I do not think that the revisions go far enough, they represent a positive step in the right direction. As I will discuss further below, this step is consistent with other changes to the ABA Standards that recognize the value of legal writing and skills education.

I am writing this letter in my personal capacity. It represents my views and not those of the University of Arizona or the James E. Rogers College of Law. My views have naturally been informed by my decade-plus in legal academia—first as a tenure-track professor at Regent University School of Law and currently as a faculty member with continuing status (clinical tenure) at the University of Arizona James E. Rogers College of Law.

As a professor I have taught both skills and doctrinal courses, including Constitutional Law I & II, Federal Courts, Appellate Advocacy, and the first semester 1L writing course. My comments to the Council are based in part on a book chapter[1] I wrote about how I incorporate skills education into my doctrinal classes.  My comments will cover the importance of skills education, how the revisions are consistent with past Standards changes on legal skills education, and how the revisions don’t go far enough.

The Importance of Skills Education

Legal writing is one of the few skills taught in law school that all attorneys perform. According to a 2011–2012 study of newly licensed attorneys by the National Conference of Bar Examiners, 100% of surveyed attorneys reported that that they engaged in the skill of “written communication.”[2] In fact, of the 98 knowledge domains, 36 skills and abilities, 43 general tasks, and 13 specific practice area tasks that the study asked attorneys to rate as “significant . . . to [their] performance as a newly licensed attorney,” “written communication” had the highest significance rating and was the only item that 100% of attorneys said that they performed.[3]  The other highest rated items, both in significance and percentage performing, all fell into the skills domain. They represent skills taught in legal writing courses—“paying attention to details,” “listening,” “oral communication,” “professionalism,” “using office technologies,” “critical reading and comprehension,” “synthesizing facts and law,” and “legal reasoning.”[4]

Anecdotally, when I talk to judges and other legal employers, they often emphasize that they want to hire graduates with strong research and writing skills. These employers know that they can teach the substance to new hires, but teaching the skills of writing and research are time-consuming and difficult.

Given the importance of legal writing as a skill that law students must learn, it makes sense to offer tenure-like job protections to legal writing faculty. It seems counterproductive to treat educators who teach one of the most important skills students learn in law school as second-class citizens. It sends the wrong message to our students (and other faculty) about the importance of skills education. 

Further, offering more job protections, and the resulting higher salaries, to skills faculty will help law schools recruit and retain better skills professors, which will only improve the quality of legal writing and skills education.

The Revisions are Consistent with Past Changes Recognizing the Importance of Skills Education

Since the early 1980s, the ABA has slowly revised the Standards to recognize the importance of skills education. As I explained in my book chapter (apologies for the long block quote):[5]

In the early 1970s, as part of a major reform to the standards for approving law schools,[6] the ABA required that law schools teach, as part of their core curriculum, “‘the duties and responsibilities of the legal profession’” and “‘professional skills, such as counselling, the drafting of legal documents and materials, and trial and appellate advocacy.’”[7] In 1981, the ABA added the requirement that law schools “offer to all students at least one rigorous writing experience,” in addition to “instruction in professional skills.”[8]

Eight years later, the ABA Council of the Section of Legal Education and Admissions to the Bar created a task force to study the “gap” between law schools and the legal profession.[9] Part of the task force’s work included examining what “skills” and “values” attorneys needed “to assume professional responsibility for handling a legal matter.”[10] In surveying newly licensed attorneys and their employers on this point, the task force found that “oral and written communication skills” were some of the most important skills for lawyers to possess.[11] It also found that while those surveyed thought that these skills could be taught in law schools, they also thought that law schools were doing a poor job teaching them.[12] For example, 77 percent of newly licensed Chicago attorneys thought that oral communication could be taught in law school, but only 39 percent thought sufficient attention was given to teaching it.[13] Similarly, 91 percent thought that written communication could be taught in law school, but only 55 percent thought that law schools devoted sufficient attention to teaching it.[14]

The task force published its report, known as the MacCrate report after its chairperson Robert MacCrate, in July 1992. The report included a statement of skills and values that “are desirable for practitioners to have.”[15] While the task force recognized that law school graduates may not acquire all of the skills in law school,[16] it saw the statement as something that could assist law schools in curricular development, including “[r]evisions of conventional courses and teaching methods to more systematically integrate the study of skills and values with the study of substantive law and theory.”[17] Among the ten skills identified by the report as “fundamental lawyering skills” were problem solving, legal analysis and reasoning, factual investigation, communication, and recognizing and resolving ethical dilemmas.[18]

Despite its lofty goals, a 1995 survey of legal writing program directors indicated that the report did not significantly impact their programs.[19] The 1996 ABA standards, however, did see two changes to Standard 302 that seemed to flow from the MacCrate Report. The first change stated that law schools must offer “an educational program designed to provide its graduates with basic competence in legal analysis and reasoning, legal research, problem solving, and oral and written communication.”[20] The second change directed law schools to “offer live-client or other real-life practice experiences” that “might be accomplished through clinics or externships” but need not be offered to all students.[21]

. . . .

The 2001–2002 ABA Standards did make some significant changes to the teaching of lawyering skills—changes that impacted my law school experience. First, rather than simply requiring that law schools offer a writing experience and skills instruction, the standards were amended to require that students receive:

(1) Instruction in the substantive law, values and skills (including legal analysis and reasoning, legal research, problem solving and oral and written communication) generally regarded as necessary to effective and responsible participation in the legal profession; and

(2) Substantial legal writing instruction, including at least one rigorous writing experience in the first year and at least one additional rigorous writing experience after the first year.[22]

 . . . .

In the fifteen [now nearly nineteen] years since I graduated from law school, surveys of law students and recent graduates continue to recognize the importance of lawyering skills education and call for law schools to do a better job in teaching lawyering skills. The 2007 Carnegie Report Educating Lawyers called for law schools to adopt an “integrated curriculum” that included “legal doctrine and analysis,” lawyering skills, and professional identity.[23] This suggestion likely stemmed in part from student suggestions “that writing should be ‘more integrated into courses on doctrine’ in order to speed up [their] learning of legal reasoning.”[24] . . .

Despite the importance of these skills, the perception among practicing lawyers is that law schools still are not doing sufficiently teaching lawyering skills. A 2014 survey by BARBRI revealed that only 23 percent of practicing attorneys “believe recent law school graduates possess sufficient practice skills.”[25] While the ABA standards now require students to complete at least six credit hours of experiential learning to graduate,[26] there is still a need, as the Carnegie Report recognized, for an integrated curriculum in law schools that incorporates skills learning into the doctrinal classroom.

This lengthy history shows the Council’s support for skills education—support that is also demonstrated by the Council’s consideration of expanding the number of experiential credits students must earn to graduate. It also shows the importance of not just standalone skills courses, but also incorporating skills into the doctrinal classroom. 

Unfortunately, affording skills faculty a lesser status makes some doctrinal colleagues unwilling to listen to our suggestions for incorporating writing into the doctrinal classroom (or other suggestions for that matter). I recall discussing pedagogical methods in a committee meeting with tenured colleagues and having my suggestions dismissed because legal writing is just different. Ironically, the suggestions came from the doctrinal classes I taught, not my writing course. Sadly, this type of treatment is common.

Formal recognition from the Council and the ABA as a whole that skills faculty deserve tenure-like protections will help eliminate the status-based stratifications that have formed in legal academia. I hope that the result will be more collaboration and an overall better educational experience for our students.

The Revisions Do Not Go Far Enough

 While I appreciate the value of incremental change, and I recognize that law and legal education change at a snail’s pace, the revisions do not go far enough. I encourage the Council to consider requiring law schools to offer complete parity between doctrinal and skills faculty. While tenure-like protections are a good starting point, serving in a clinical tenure position for the past six years has shown me the flaws in a bifurcated system.

First, at many law schools skills faculty perform the same tasks as tenure-track faculty. We teach doctrinal classes, we conduct research, we write books and scholarly articles, we serve on college and university committees, we supervise student notes, and we present at conferences. Many of us are, in fact, national experts in our fields. To use a common adage, if it walks like a duck and talks like a duck, shouldn’t we call it a duck?

Second, while clinical tenure does provide job protections, it also promotes inequalities that negatively affect women and minorities. The University of Arizona offers a type of clinical tenure called continuing status. At the University as a whole, 57.5% of the faculty who hold continuing status or are on the continuing status track are women.[27] This is compared to the 33.3% of women who hold tenure and the 50.9% of women who are tenure-track. The racial disparities are also significant for some categories:

Race/Ethnicity

Continuing or continuing eligible faculty

Tenured faculty

Tenure-track faculty

American Indian or Alaska Native

3.3%

1.2%

1.5%

Asian

2.3%

13%

15.7%

Black or African American

1.4%

1.9%

3%

Hispanic or Latinx

19.2%

7.2%

10.1%

At the College of Law, 13 out of 23 tenure-track faculty are women (excluding faculty that also hold an administrative designation).  On the continuing status side, 21 out of 31 faculty are women.  The racial disparities are not present at the College of Law, with 10 tenure-track faculty and 13 continuing faculty identifying as minorities.

These distinctions between tracks are important, since the mean salary for tenure-track faculty at the College of Law is $190,503, while the mean for continuing status faculty is $119,198. The differential at the University is not as stark, but still present, with the mean salary for tenure-track faculty at $144,315 and continuing status faculty at $106,906.

Thus, while I do strongly support job protections for skills faculty, I encourage the Council to consider if these changes will give skills faculty the full recognition that they deserve, or will it continue to perpetuate disparities that often negatively affect women and minorities.  I would encourage the Council to be a leader on this issue and require schools to offer tenure to skills professors, or, at a minimum, require that the tenure-like positions offer similar compensatory prerequisites.

Thank you for the work that you have done and your consideration of my comments. I look forward to following the Council’s actions on this matter.

Warmly,

Tessa L. Dysart

Assistant Director of Legal Writing

Clinical Professor of Law

 

[1] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181 (Tammy Pettinato Oltz ed. 2021).

[2] Susan M. Case, The NCBE Job Analysis: A Study of the Newly Licensed Lawyer, B. Examiner, March 2013, at 52–56.

[3] Id.

[4] Id.

[5] Tessa L. Dysart, An Integrated Approach to Constitutional Law in Lawyering Skills in the Doctrinal Classroom: Using Legal Writing Pedagogy to Enhance Teaching Across the Law School Curriculum 181, 183–86 (Tammy Pettinato Oltz ed. 2021).

[6] ABA Standards and Rules of Procedure for Approval of Law Schools, intro. at vi (2013-14) (Am. Bar Ass’n amended 2017–18).

[7]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1978) (Am. Bar Ass’n amended 2017–18); see also Maccrate Report, supra note 1, at 233.

[8]ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1981) (Am. Bar Ass’n amended 2017–18).

[9] MacCrate Report, supra note 1, at xi.

[10] Id.

[11] Id. at 380.

[12] Id. at 381.

[13] Bryant G. Garth & Joanne Martin, Law Schools and the Construction of Competence, 43 J. Legal Educ. 469, 481 tbl.5 (1993).

[14] Id.

[15] MacCrate Report, supra note 1, at 123.

[16] Id. at 125.

[17] Id. at 128.

[18] Id. at 138-140.

[19] Lucia Ann Shilecchia, Legal Skills Training in the First Year of Law School: Research? Writing? Analysis? Or More?, 100 Dick. L. Rev. 245, 261-62 (1996).

[20] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (1996) (Am. Bar Ass’n amended 2017–18).

[21] Id.

[22] ABA Standards and Rules of Procedure for Approval of Law Schools § 302 (2001–02) (Am. Bar Ass’n amended 2017–18); see also Kenneth D. Chestek, MacCrate (in)Action: The Case for Enhancing the Upper-Level Writing Requirement in Law Schools, 78 U. Colo. L. Rev. 115, 121–22 (2007) (discussing the changes in the 2001 amendment).

[23] William M. Sullivan et al., Educating Lawyers: Summary 8 (2007).

[24] William M. Sullivan et al., Educating Lawyers 104 (2007). In sharing this paper at a faculty workshop at the University of Arizona James E. Rogers College of Law, some of my colleagues noted that formerly, legal writing was taught as part of doctrinal classes and not as a standalone class. While I do think writing should be incorporated into the doctrinal classroom, I do not think that this incorporation should supplant existing first- and second-year legal writing courses, which teach the foundational aspects of legal writing to students.

[25] 2014 State of The Legal Field Survey, Barbri Group, https://www.thebarbrigroup.com/2014-state-of-the-legal-field-survey/ (last visited July 7, 2019).

[26] ABA Standards and Rules of Procedure for Approval of Law Schools § 303 (2014–15) (Am. Bar Ass’n amended 2017–18).

[27] The data contained in this letter was provided to me by the University of Arizona University Analytics & Institutional Research Department.

December 25, 2023 in Appellate Advocacy, Current Affairs, Law School, Legal Writing | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, December 3, 2023

The New Rules for AI-Based Research

The Fifth Circuit has published for comment the first federal appellate rule on the use of artificial intelligence (AI) in filings. It would require that the person filing “certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human” as part of the certificate of compliance.

A number of recent incidents have highlighted the danger of reliance on AI. As has been widely reported, two New York lawyers were sanctioned for using AI to draft a brief that contained seemingly valid citations precisely making the point they wanted to for the court, but turned out to be entirely made up. Recently, the Washington Post reported that a young, overextended Colorado attorney relied upon AI for a brief that also included fictious citations, was sanctioned by the court, and fired from his position at the law firm. In another instance described in the same article, a Los Angeles law firm was called out for a similar offense by opposing counsel and fined $999 by the court; it blamed a young lawyer who resigned from the firm after the fictious cases were discovered.

The Washington Post article quoted a Brown University computer scientist that what is “surprising is that [AI programs] ever produce anything remotely accurate.” The scientist, Suresh Venkatasubramanian, explained to the Post that these programs are designed to mimic conversation by developing seemingly realistic responses to whatever inquiry is submitted. It realizes that a legal brief includes citations to precedent, but does not read or synthesize the actual cases, so it creates its own.

The topic was part of the discussion with state chief justices at a National Center for State Courts meeting I was privileged to moderate just before Thanksgiving. As one chief justice expressed to me in private conversation afterwards, she was surprised that it happens at all because she could not imagine a lawyer filing a brief that relies on a case that had not been read by the attorney.

The Fifth Circuit’s proposed rule appears to make that the standard. Within the Fifth Circuit, a judge, Brantley Starr of the U.S. District Court for the Northern District of Texas, has already amended the rules for filings in his court, to require a certificate attesting that the filing contains nothing drafted by AI or that a human being checked any language drafted by AI for accuracy. The judge’s rule calls AI platforms “incredibly powerful” and useful for  and have many uses in the law for “form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument.” One thing he insists it is not useful for is legal briefs.

Judge Starr explains that, at least as currently devised, AI is “prone to hallucinations and bias.” To put it plainly, he says “they make stuff up—even quotes and citations.”

Judge Starr also worries about bias in the programming. He explains that “attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients.” Neither a computer program nor those who devised adhere to an oath. He states,”[t]hese systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth).”

The judge is prepared to be convinced otherwise. He has put out a challenge: “Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why.” Until that happens, the judge “will strike any filing from a party who fails to file a certificate” and is prepared to Rule 11 sanctions for an inaccurate filing.

These early rules proposals are likely to proliferate, particularly because online legal research systems, such as Westlaw, Lexis, and Casetext, now also offer AI-based research assistance that may blur the lines between lawyer and computer in ways that may not be predictable. Appellate practice is changing once again.

December 3, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, State Appeals Courts, Web/Tech | Permalink | Comments (0)

Tuesday, November 14, 2023

Stigmatizing AI Usage

Last month, fellow blogger Charles Oldfield posted about some courts requiring lawyers to disclose their use of AI in preparing briefs for the court.  In the post, he noted that, while the goal seemed to be ferreting out the use of generative AI, the requirements may have inadvertently stretched beyond that scope.  But both instances raise the questions of why and how to cite AI.

I’ve been attending a wonderful conversation group of legal writing professors, led by Professors Kirsten Davis from Stetson University and Carolyn Williams from the University of North Dakota, discussing legal writing and generative AI. And a recent discussion addressed whether and, if needed, how to cite generative AI in legal writing.

Professor Davis first addressed the question of how we, as legal writers, should view the role of generative AI: as the author or authority, as a co-author, as an assistant, or as a tool. She aptly pointed out that our view of the technology directly informs whether we should cite or disclose our use of generative AI. Professor Williams (author of the 7th Edition of the ALWD Guide to Legal Citation) then addressed the purposes of citation:

(1) allowing the reader to locate the source of the writer’s information;

(2) giving credit to the author of the words or ideas the writer used;

(3) showing the reader that the writer conducted proper research;

(4) protecting the writer from plagiarizing;

(5) increasing the writer’s credibility with the reader; and

(6) providing additional information about the sources used and their connection to the writer’s assertions to aid the reader’s choices about whether to pursue the source.

These considerations made me wonder how those judges requiring disclosure are viewing AI and what purpose they believe disclosure serves.  And it seems their concern has less to do with the technology, itself, and more to do with skepticism that lawyers will use it in a way that violates the rules of professional conduct.

ABA Model Rule 5.1(b) provides that “A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”[i]  When a lawyer uses generative AI to draft motions, pleadings, briefs, or other filings with the court, the lawyer is treating the technology as a subordinate attorney and, therefore, should be reviewing the output for compliance with the rules of professional conduct.  This review includes verifying that “each and every citation to the law, or the record in the paper, . . . [is] accurate”[ii] and does not reflect any “personal prejudices, biases, and beliefs.”[iii]  But these same purposes are served when an attorney signs the document under Federal Rule of Civil Procedure 11.[iv]  So including the certification seems superfluous, especially given that supervising attorneys do not habitually credit their subordinating attorneys’ work in drafting.

Requiring the disclosure also fails to serve any of the traditional purposes of citation. Because generative AI rarely, if ever, produces identical output in response to a repeated prompt,[v] a reader cannot use a citation to either verify the accuracy of any assertions or investigate the source any further. And, because generative AI uses predictive language, it is—by design—drawing on the ideas of others represented in the text used in its training; thus, citing it does not serve to give credit to the proper authority or even protect the writer from plagiarism. If a legal writer treats AI-generated drafts as work produced by a subordinate attorney, then the attorney will have already checked the accuracy and validity of legal assertions and associated citations to authority, so the added layer of citing the AI tool(s) used does not further the purpose of establishing thorough research.

With respect to establishing the writer’s credibility, disclosing the use of generative AI might very well have the opposite effect considering highly publicized recent follies involving generative AI and legal filings.[vi]  And this negative effect is likely to be exacerbated by disclosure requirements rooted in skepticism.

Mr. Oldfield included as his final endnote that he “used Word’s Editor in preparing th[e] post.”  I assume the inclusion was done in jest to emphasize the absurdity and breadth of some of the existing disclosure requirements. But it raises an interesting point: by requiring lawyers to disclose their use of AI, are courts discouraging lawyers from using a potentially valuable tool?

In the small group I was in for our legal writing discussion on if and how to cite generative AI-created content, we concluded that asking students to cite their use of AI on submissions would be futile because it would either discourage them from using AI or encourage dishonesty about whether they did. Requiring attorney disclosure feels the same.

And, if the true goal of requiring disclosure is to ensure ethical usage of AI, it is likely to have the opposite effect. Discouraging lawyers from using AI could cause violations of Rule 1.1, requiring lawyers to “provide competent representation to a client” through “legal knowledge, skill, thoroughness and preparation.”  Comment 8 expressly directs that the duty of competence requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”[vii] Discouraged usage might also result in violations of Rule 1.5, requiring only reasonable fees,[viii] if a lawyer avoids using generative AI where the AI could complete the same task in less time, resulting in a higher-than-necessary fee for a client.[ix] And, to the extent required disclosure imposes a stigma on lawyers using generative AI, disclosure requirements could encourage dishonesty about usage, causing violations of Rule 3.3’s duty of candor to the tribunal.

While generative AI has not yet reached a point where it can replace lawyers, it is certainly capable of being a valuable time-saving tool that benefits both lawyers and clients. Lawyers should be encouraged to learn about and understand it, rather than avoid it. And, to that end, disclosure requirements should be abandoned.

 

[i] ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_5_1_responsibilities_of_a_partner_or_supervisory_lawyer/

[ii] https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[iii] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[iv] “By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney . . . certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

Fed. R. Civ. P. 11(b).

[v] Charles Ross, Does ChatGPT Give the Same Answer to Everyone?, Medium.com (March 20, 2023), available at:  https://medium.com/@charles-ross/does-chatgpt-give-the-same-answer-to-everyone-521e3e9355a4

[vi] See, e.g., Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, New York Times (May 27, 2023), available at https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.

[vii]ABA Model Rules of Professional Conduct, available at: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/

[viii] ABA Model Rules of Professional Conduct, available at:  https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_5_fees/

[ix] Brad Hise and Jenny Dao, Ethical Considerations in the Use of A.I., Reuters.com (Oct. 2, 2023), available at: https://www.reuters.com/legal/legalindustry/ethical-considerations-use-ai-2023-10-02/

November 14, 2023 in Appellate Practice, Appellate Procedure, Legal Ethics, Legal Writing | Permalink | Comments (0)

Sunday, October 22, 2023

A Majority Opinion Becomes a Dissent Disguised as a Majority Opinion

Sometimes, after an opinion is drafted, members of a court change their minds. It may be that the draft highlights something a member of the majority finds sufficiently troubling that the result should change. It may be that the draft opens the door to something a judge believes should be off the table.

One way that an outsider can tell that a judge lost the majority is when the dissent contains a fuller statement of the facts than the majority opinion. It suggests that the original majority opinion was turned into a dissent and the original dissent became the opinion of the court.

Something quite unusual in this regard took place in the Fifth Circuit earlier this month. The State of Texas filed an emergency appeal of a stay of execution for a death-row prisoner who challenged state statutes that precluded him from receiving DNA testing to establish his innocence of crimes that he was not convicted of but that qualified him for the death penalty because of presumed “future dangerousness.” The issue he raised was also pending in the Fifth Circuit in another case brought by a different inmate.

In this case, the inmate first argued that the court had no jurisdiction over the interlocutory appeal because the district court called its order a stay, rather than an injunction. The majority opinion, by Judge Leslie Southwick, quickly set that semantical issue aside, calling it “commonplace” that such jurisdiction existed and noted that the dissenting opinion “contains the same analysis, and we restate much of it here.”

Judge Jerry Smith, a member of that Court since 1987, dissented. His dissent begins with a strange and unique statement:

          The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago.

          In the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes, I attach the Fifth Circuit panel opinion that should              have been issued.

What follows is an opinion that in look and feel appears to be a majority opinion written by Judge Smith and joined by all members of the panel. The opinion expresses the same pique evident in the second prefatory sentence before it about the courts’ indulgence of repeated appeals and a rejection of the merits of the prisoner’s case.

Judge James Graves specially concurred in the majority opinion. attachment of a proposed majority opinion drafted by Judge Smith. The opinion takes pains to rebut the dissent’s “proposed majority opinion,” which Judge Graves said he never joined. The detail in this concurrence suggests that it was originally a dissenting opinion, which succeeded in changing Judge Southwick’s mind, much to Judge Smith’s apparent consternation.

For an appellate advocate, the self-evident dynamics in the case makes the concurrence worth studying. It carefully parses the position of the original majority to demonstrate that it decides more than the case presents. Instead of looking to the validity of the laws that prevent use of DNA evidence to sentencing, which Judge Smith suggests is a losing proposition for the inmate, but that, procedurally, with another case under advisement raising the same issues, the district court did not abuse its discretion in staying the execution pending its disposition because there is no reasonable “basis to distinguish the present appeal.”

Perhaps if appellate counsel had limited the argument to the common-sense idea that a determinative case is pending, we might have seen a straightforward and brief opinion similarly supporting the stay without the odd display of internal friction at the court. This case is Murphy v. Nasser, No. 23-70005, 2023 WL 6814520 (5th Cir. Oct. 10, 2023).

October 22, 2023 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

October 21, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Saturday, October 14, 2023

Tips for New Lawyers

     Starting your legal career can be an uncertain and stressful time. Below are some tips that can help new lawyers successfully transition from law school to the legal profession.

1.    Ask for help.

     If you need help, ask.

     Of course, do not spend your day asking hundreds of questions. Try to solve the problem first and exhaust every resource available to do so. After all, if you approach a partner and say, “I just got an assignment to research defamation law in New Jersey, and I can’t find a single case,” it will not go over well. But when you have exhausted all available resources and cannot resolve the problem, don’t be afraid to ask for help. You are doing yourself – and the firm – a great disservice by trying to figure it out yourself, only to see it become a much bigger problem later.  

2.    Pay attention to the details.

     The little things matter. This includes, but is not limited to, ensuring that everything you write is grammatically correct, free of spelling errors, and cited properly. For example, if your brief is filled with spelling errors, how can a judge possibly trust that your arguments are credible? Focusing on the little things also means, among other things, that the legal authority you cite in a brief or memo is good law, that you follow the local court rules, that you don’t cite ten cases for a simple legal proposition, that you file in the right court or venue, that you cite the record accurately, that you meet deadlines, and that you show up to meetings on time.  

     If you cannot pay attention to the little things, no partner will trust you with the big things.

3.    Focus on developing your writing skills.

     Some, if not many, law school graduates struggle to write effectively and persuasively. This is due in substantial part to the fact that universities (and law schools) do not place sufficient emphasis on developing predictive and persuasive writing skills. It is also because writing persuasively, particularly in the legal context, is difficult. As such it takes time, practice, and repetition to continuously improve your writing skills. It also requires you to embrace the writing process, which entails writing, re-writing, and editing. In short, it is a grind.

     Young lawyers often fail to appreciate the process of what it takes to be an excellent writer, re-writer, and editor. Some believe that a first or second draft is the final draft. Or their standard for what constitutes an outstanding memorandum or brief is far too low. To be a great writer, you must embrace the writing process and go through the hard thinking – the grind – to produce an excellent work product. And you must be dedicated to improving your writing skills throughout your life.

     Put simply, if you don’t put in the work, you won’t receive the outcome that you want.

4.    Be humble.

     As a new lawyer (and as a person), you should demonstrate humility. If you act like an entitled, narcissistic jerk, you will not get very far. If you gossip about your colleagues and supervisors, you will go nowhere because no one will want to associate with you.

     When you are a young lawyer, your focus should be on being an asset to the firm. This means being a team player, and being someone who will sacrifice your time and energy for the firm. Indeed, and particularly if you are working in a large firm, you will likely get assignments that you do not like, or work on cases in areas of law that you despise. For example, a partner may ask you to sacrifice your weekend to review hundreds (or thousands) of documents for relevance or privilege.

     Sure, these tasks are not fun. It’s not pleasant when you plan a mini vacation with your friends or partner, only to find out that your weekend will be spent in the office. However, as stated above, your job is to be an asset to your firm and to demonstrate your value. So, deal with it by having a positive attitude and realizing that your sacrifices in the short term will have tremendous benefits in the long term.

5.    Take feedback well and respond effectively to adversity.

     As a young lawyer, you will make mistakes. You will fail. The worst thing that you can do in response to these realities is to get discouraged. Rather, your colleagues want to know that you can overcome adversity and persevere through challenges. They also want to know that you are a good listener, such that you can receive constructive criticism and use it to improve your work product.

     Experienced lawyers will understand (within reason). But they won’t understand when you make excuses, blame others, or otherwise show a lack of accountability. That shows a lack of maturity. What they will admire is that you learn from adversity and, as a result, become a better lawyer and person.

6.    Exude confidence and don’t apologize too much for mistakes.

     When you make a mistake (and you will), own it. Be honest. Be committed to improving. But don’t apologize for every little thing that goes wrong. And always exude confidence. Being confident engenders trust from your colleagues; insecurity engenders concerns about your poise, ability, and competence.

7.    Don’t focus too much on being successful – understand how to be successful.

     Great lawyers work hard. Very hard. They know that to achieve a certain outcome, you must put in long hours, learn from failure, cope with adversity, and persevere when circumstances are less than optimal.  

     Put simply, they embrace the process of what it takes to be a great lawyer. Sometimes, that means working until 3:00 a.m. on consecutive days to finish a brief or motion or sacrificing a trip to the Michigan-Ohio State game to summarize hundreds of pages of deposition testimony. Yes, this is not fun. It is essential, however, to establish your value and to show that you are a reliable employee who will go the extra mile to achieve the best result possible for the firm's client.

8.    Don’t over-promise or under-deliver.

     Often, young lawyers represent to a partner that they can complete an assigned task by a particular deadline despite knowing that doing so will be next to impossible. Alternatively, they take on too many assignments, which leads to unnecessary stress and missed deadlines. Simply put, they are afraid to say no, for fear that they will lose the confidence of a partner. That could not be further from the truth. Partners appreciate it when you do not over-promise – provided you have a legitimate reason for doing so.

     Of course, when you do take on a project, be sure not to over, not under, deliver. For example, if a partner asks you to draft a memorandum summarizing the elements of defamation, be sure to include in your memorandum the defenses against a defamation claim so that your supervisor can obtain a comprehensive understanding of defamation law.

9.    Show that you have the intangibles.

     A high LSAT score, outstanding critical thinking skills, and a law degree from Yale do not mean that you will be a great lawyer.

     Great lawyers know how to relate to and deal with people. They are not arrogant jerks. They are empathetic. They have common sense. They know how to cooperate, work with a team, and accept constructive criticism. They persevere. They consistently perform well. They are disciplined and focused. They have good instincts and judgment. They communicate effectively. They don’t allow external factors to affect their choices and decisions. And they are the types of people that you would want to have a drink with on a Friday evening.

10.    Understand that being a great lawyer first requires you to be a healthy person.

     If you want to be an outstanding lawyer, you must lead a healthy life that includes balance, a strong mindset, and effective coping skills. This means, among other things, taking care of your physical and mental health, having supportive family and friends, and pursuing interests outside of the law.  

     Simply put, you can’t allow the law to consume you and your life.

***

     Ultimately, remember that no one expects you to be perfect or to immediately perform at the highest level upon graduation. What they do care about is whether you are committed to continual improvement and consistency in performance and are willing to put in the work to become an asset to the firm and an attorney who accepts nothing less than excellence.

October 14, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, October 9, 2023

On Citing Law Reviews

With forty-five years of legal practice under my belt, I paused for a moment as I was working on a new brief to think about the enterprise that has been my career. My new brief covers an issue I had never encountered before in an area of law that was new to me. I certainly enjoyed getting to know the law in this area, hoping that my understanding is solid and not a misreading of the cases and historical background. And it is the opportunity to discover new things and apply my perspective to it that keeps me going.

As with any brief, this one is being written with an eye to its audience. In this case, that means the justices of the Supreme Court. I know that what may play well with one justice may be off-putting to another. Thinking about that, I recalled remarks that Justice Ginsburg once gave at the University of South Carolina.

 She advised that a “brief skips long quotations, but doesn't unfairly crop the occasional quotations used to highlight key points.”[1] Every judge I know agrees with that statement. However, she made another that day, which may not be universally shared. She said, a “good brief does not shy away from citing law review commentaries or other scholarly analyses that may aid the court as much as they did the brief writer to get an overview of the area.”[2] As a former law professor, she had a natural interest in scholarly work.

However, an interest in law reviews is not universally shared by judges. Chief Justice Roberts once said that “as a general matter, law reviews are not―particularly helpful for practitioners and judges.[3] Roberts later made a similar point when he challenged judges in the Fourth Circuit to pick up a law review, where they are likely to see that the first article is likely to be an esoteric article “of great interest to the academic that wrote it, but isn’t of much help to the bar.[4]

A 2012 study of the frequency with which justices cited law review articles concluded that citations had fallen off from earlier eras and that 40 percent of the articles cited were written by people who were not full-time academics.[5]

Certainly, all articles are not of equal value. Some cover the history with precision and diligence that will help where that is at issue. Others conduct a survey of the law of various states that also provides useful fodder for a brief. However, where the law review article is more philosophical or theoretical, it may have limited value. Those quick thoughts suggest that law reviews are most helpful when they provide practical information that supports the argument you are making. When the article provides that type of information, the judge need not sit on the Supreme Court to approve of its use in a brief. Keep that in mind when the issue requires more than an analysis of a law, rule, or trial record.

 

[1] Hon. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567, 568 (1999).

[2] Id.

[3] Quoted in Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399, 399 (2012).

[4] Id. at 399 n.1.

[5] Id. at 416.

October 9, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, October 3, 2023

Disclosing the Use of AI

Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.

Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,”[1] and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.”[2] Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.”[3] Generative AI includes things like ChatGPT.

The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.[4]

On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:

All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.[5]

Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI.[6] While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.

Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.

 

[1] https://www.merriam-webster.com/dictionary/artificial%20intelligence

[2] Id.

[3] https://www.merriam-webster.com/dictionary/generative%20artificial%20intelligence

[4]https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[5] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[6] Disclosure: I used Word’s Editor in preparing this post.

October 3, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (1)

Saturday, September 30, 2023

In Defense of Langdell and the Socratic Method

     Christopher Columbus Langdell got it right – for the most part. What Langdell got right is the Socratic Method – and the accompanying cold calling – that is essential to training law students to be outstanding lawyers. Below is a brief explanation of why Langdell’s method is a vital component of legal education, along with a few suggestions to maximize the competency and marketability of law school graduates.

I.    Why Langdell was right.

    A.    The Socratic Method works because it improves critical thinking skills.

     Critical thinking (and intelligence generally) is among the most important skills needed to be an excellent lawyer. For example, great lawyers know how to read and distinguish cases, synthesize complex precedents, reason by analogy, and make persuasive arguments. To do so, you must know how to think critically, identify the weaknesses (and strengths) in arguments, distinguish relevant from irrelevant facts (and law), use the law and facts to craft a compelling narrative, and make policy arguments that support a judgment in your favor.

      Put differently, intelligence matters. The Socratic method makes you a smarter and more analytical thinker.

    B.    Cold Calling is beneficial.

     Cold calling is essential to an effective legal education. Indeed, cold calling teaches students the value of preparation. It teaches students to think on their feet. It forces students to perform in front of a large audience. And it teaches students the importance of, among other things, being attentive to detail, responding to unexpected questions in a persuasive manner, and examining the flaws in their previously held beliefs.

    C.    Making students uncomfortable (and nervous) is a good thing.

     Law students must learn how to deal with adversity, and they must learn how to respond effectively to adversity. They need to understand that they will fail often in life, and that failure is an opportunity to gain experience and persevere through challenges in life and in the law. They must be taught that your choices and decisions, not your circumstances, determine your destiny.

     The Socratic Method – and cold calling – accomplishes these objectives. Sure, students may experience anxiety. They may dread being called upon in class. They may embarrass themselves. They may experience self-doubt. So what? Experiencing – overcoming – these challenges help a person to grow, develop thick skin, and understand the value of preparation, perseverance, assertiveness, and confidence. In other words, learning how to cope with negative emotions, and developing a strong mindset where you take responsibility for your choices, is essential to succeeding in the law and in life.

II.    Additional Suggestions

     As stated above, the Socratic method is a critical component of a rigorous and beneficial legal education. But other components matter too.

    A.    Legal Writing and Communication

     The ability to write and communicate persuasively is essential to being an excellent attorney and advocate. For this reason, law schools should devote more time to their legal writing curriculum and require students to take a writing course in every semester of law school. In so doing, law schools should require students to draft the most common litigation and transactional documents and train students in rewriting and editing. After all, if law graduates cannot write persuasively, they will not practice law effectively.

    B.    The Intangibles

      Law schools should emphasize that success in the legal profession and in life is due in significant part to intangible factors that transcend raw intelligence, an LSAT score, or law review membership. These factors include, but are not limited to, humility, a strong work ethic, maturity, excellent judgment, discipline, consistency in performance, and passion. It also includes respecting diverse viewpoints, being willing to admit that you are wrong, and accepting responsibility for your mistakes.

     Perhaps most importantly, students need to learn how to overcome adversity and respond well to and learn from failure. They need to understand that they will face injustice and unfairness in life. And they need to be told that they are not victims, that they should not embrace victimhood, and that they aren’t “oppressed.” Rather, law students need to understand and embrace the fact that their choices, not their circumstances, determine whether they will be successful.

    C.    High Standards

     Law schools must hold students to high standards. Law professors need to be honest about the demands of the legal profession and the skills that separate mediocre lawyers from outstanding lawyers. Professors do a tremendous disservice to students if they inflate grades, coddle their students, or fail to help students acquire the skills needed to prepare them for the real world.  And law professors whose teaching is influenced by political ideology or bias, and who show hostility to viewpoints that differ from their own, should not be professors.

     Of course, students’ feelings matter and should never be disregarded. But the real world does not care about your “feelings” or sensitivities. Law firms, lawyers, and clients care about what you can do for them. Can you write a persuasive motion to dismiss, a summary judgment motion, and a trial brief? Can you make a persuasive oral argument? Can you work well under pressure and deal effectively with stress? Are you likable and relatable, or are you a narcissistic jerk? Can you communicate with clients in a simple, honest, and straightforward manner, and maintain positive relationships with them?

     Teaching the tangible – and intangible – qualities necessary to succeed as a lawyer means holding students to high standards and being honest with them. After all, they will discover the truth when they enter law practice. Preparing them for those realities reflects the truest form of empathy.

September 30, 2023 in Law School, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Wednesday, August 2, 2023

"You Write Like a Law Clerk." Ouch.

I clerked for three years before entering private practice.  It was easy to be a sponge and soak up the good tactics of the attorneys I observed, the procedures of the courts where I worked, and familiarity with new areas of law I never studied.  I read hundreds of briefs, crafted technically and legally precise bench memos and draft opinions, and examined the issues from all sides to help my judges see the lay of the land and make the best decisions.

One skill I did not learn was how to write for a client.  I learned some of that in law school, through drafting persuasive memos and briefs and some exam essays.  It crept in a bit when my bench memos took a slight step toward intemperate near the end of my clerkships, and I realized I was itching to finally get out there and practice The Law myself.  But writing with a grasp on a client's real-world concerns and goals came much later.

As a new associate, I wrote a lot.  Most of the early comments on my briefs went like this: "This is good, but you write like a law clerk."  Just as my feathers started to puff, I realized that was not a compliment. 

"Writing like a law clerk" means you forgot you have a client.  You are not maximizing the chances of your client winning if you are presenting both sides evenly.  When someone says you write like a law clerk, they are telling you to reconsider these areas of your brief:

  • The introduction: Introductions are tough.  They are the most important section of your brief because they may be the only thing a busy judge or colleague will read.  Introductions are also a summary of the brief, but no other rules apply.  In the introduction, you must be both creative and direct.  What's the real reason your client should win on the issue at hand?  What's the real reason the parties are fighting about this issue?  Highlight those.  
  • The facts:  The legal standards section should be written persuasively, but it is not where you will convince a judge to rule for you.  That's the fact section.  The law provides the outlines, but the facts fill in the story that underpins your case.  They distinguish this case from others or provide parallels to cases with good outcomes you can highlight.  The facts may tell the liability story or they may detail your efforts to avoid a discovery tiff and incorporate communications  between counsel the judge has not seen yet.  Plus, the facts help to orient the judge and law clerks who (unlike you) have not thought about your case for a few months.  Tell your client's story accurately and persuasively in the facts section, and you are putting your best foot toward victory. 
  • The money: If you ignore the damages, fees, or expenses of a case, you are thinking like a law clerk.  Clerks (at least temporarily) accept a sub-private practice salary to bask in ivory towers for a year or two.  Practicing attorneys run a business.  The business needs money to function, and clients care about how much money they are paying.  Money also drives both corporate and individual clients on both sides of the v.  Follow the money.  Is the other party's motion to compel discovery a tactic following stalled settlement talks?  Can you get the other side to stipulate to some facts so no one has to subpoena and depose a third party?  These realities should be reflected in your writing.  And when appropriate, and without disclosing any confidential settlement discussions, explain the reality of the case to the judge.

If you or a colleague think your work product sounds like a law clerk wrote it, take heart.  Focusing on these areas of your writing can turn a balanced brief into a winning brief.

August 2, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (2)

Sunday, July 30, 2023

Sometimes a Reply Brief Should Explore a New Path

Several times over the past couple of years, I agreed to join an appellate team in a case to help finish the reply brief and make the argument. Its not the optimal way to take on an appeal. Limited time, even when an extension is available and granted, may prevent mastering a complex record. The opening brief might pursue a theory or theories of the case that you find weak or contrary to precedent – and the responding brief may have exploited those flaws.

So why take on a potentially sinking ship? Perhaps you believe that the party whose team you have joined ought to prevail, or that you may help avoid setting a bad precedent. You may even have a theory of the case that you believe capable of prevailing that has gone unmentioned.

The biggest obstacle at that point to reorienting the case to a potentially winning argument is a reply brief should only respond to an opponent’s arguments and not launch new ones. New arguments raised for the first time in a reply brief are often forfeited and potentially waived. The terms forfeited and waived have different meanings for an appellate court. Forfeiture generally means a failure to make the timely assertion of a right or argument. Waiver means the intentional relinquishment or abandonment of a known right or argument.

Last year, an en banc majority of the Eleventh Circuit discussed the difference. The decision asserted that courts may “resurrect” forfeited issues when prudence suggests it is necessary.[1] Prudential practice may also dictate otherwise, the Court stated, but “the conditions under which we will excuse it are up to us as an appellate court.”[2] The Court thus claimed a great deal of unfettered discretion.

Counsel in the position of joining the team at the reply stage should provide the court with a basis to exercise that discretion by finding a way to shoehorn the argument into the reply. Often, I have found, the reply brief makes a point that provides an ideal jumping off point for the new legal theory. It may be the citation of a case that supports the theory, an opponent’s argument that opens the door to the theory as a response, or the responsive brief’s claim that the opening brief ignored a point that the trial court made. More often than not, when I have used that tactic, the appellate court has accepted it and found it dispositive. Even if you are not an eleventh-hour addition to a case, read the responsive brief for opportunities to explore a new theme that might beat the path to victory.


 

[1] United States v. Campbell, 26 F.4th 860, 872 (11th Cir.) (en banc) (citations omitted), cert. denied, 143 S. Ct. 95 (2022).

[2] Id.

July 30, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing | Permalink | Comments (0)

Saturday, July 15, 2023

Judge Michael’s Brief-Writing Tips, Part 1

One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs.  In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.

On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.  Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun.  See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.

Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too.  Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice. 

Judge Michael begins: 

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing. 

He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”

For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.

Tip 1.  Remember, Your Goal Is to Persuade, Not to Argue.  Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’  He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.”  Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.

Tip 2.  Know thy Audience.  Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages.  While appellate judges do not necessarily provide links to their opinions, we can certainly search for them.  As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.”  Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.”  Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”

Tip 3.  Know thy Circuit.  Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.”  Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue. 

Tip 4.  Know the Facts of the Cases You Cite.  When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context.  Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs.  According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.”  Why?  Because courts “decide real disputes” and “[r]eal disputes are fact driven.”  Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.”  Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.” 

In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”

Tip 5.  Shorter Is Better.  When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review.  Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task.  In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments.  Judge Michael suggests we balance on the side of fewer arguments.  He states:  “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”? 

The judge explains, “[w]eak arguments detract from the entire presentation.”  He offers this great advice:   “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.”  Good advice, indeed. 

Happy writing!

July 15, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, July 11, 2023

All I Need to Know About Flow I Learned from Pink

We’ve all read legal writing that is stilted and choppy.  Though it may not affect the validity of the arguments made, it does make reading uncomfortable and detracts from the writer’s ethos.  While short sentences come in handy when seeking to emphasize a point, using only short, choppy sentences can give the appearance of incapacity for complex thought[i]—not exactly the impression you want your reader to have.

The solution to choppiness is to increase flow.  “Writing flow refers to the pace, cadence, or rhythm of a piece of writing.”[ii]  And, though there are many ways to increase flow, dovetailing is an easy one to incorporate, and it has the added benefit of ensuring sound logic in your argument.  Dovetailing gets its name from a carpentry joint with overlapping pieces shaped like—you guessed it—a dove’s tail.  As a writing concept, dovetailing is “the overlap of language between two sentences that creates a bridge between those two sentences.”[iii]  This overlap is accomplished by a combination of summation and repetition. And the musical artist Pink is a lyrical carpenter.

In her song “Try,” Pink uses the following dovetailed lyrics:

Why do we fall in love so easy,
even when it's not right?

Where there is desire, there is gonna be a flame.

Where there is a flame, someone’s bound to get burned.

But just because it burns doesn’t mean you’re gonna die.

You gotta get up and try, try, try.

First, she uses summation by replacing the broader concept of “fall[ing] in love so easy, even when it’s not right” with the single word “desire,” thereby connecting the two ideas.  Then, she then uses lots of repetition to connect the lines in the chorus:  flame/flame, burned/burns, you’re/you.

These tools also work well in legal writing to help build arguments and explain the writer’s reasoning.  Consider the following example of summation, followed by repetition, from Bethel School District No. 403 v. Fraser, 478 U.S. 675, 681 (1986), where the Court held that the First Amendment did not protect lewd and indecent speech made on school grounds:

The role and purpose of the American public school system were well described by two historians, who stated: “[P]ublic education must prepare pupils for citizenship in the Republic.... It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.” C. Beard & M. Beard, New Basic History of the United States 228 (1968). In Ambach v. Norwick, 441 U.S. 68, 76–77, 99 S.Ct. 1589, 1594, 60 L.Ed.2d 49 (1979), we echoed the essence of this statement of the objectives of public education as the “inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system.”

These fundamental values of “habits and manners of civility” essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these “fundamental values” must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students.

(Emphasis added.)

The Court first summarized the identified role and purpose of the public school system, along with its objectives, as the “fundamental values of ‘habits and manners of civility.’”  It then repeated the phrase “fundamental values” to introduce a new concept—that consideration for the sensibilities of others must also be factored into the equation.

Here is another example from Fraser demonstrating repetition:

This Court's First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar. Board of Education v. Pico, 457 U.S. 853, 871–872, 102 S.Ct. 2799, 2814–2815, 73 L.Ed.2d 435 (1982) (plurality opinion); id., at 879–881, 102 S.Ct., at 2814–2815 (BLACKMUN, J., concurring in part and in judgment); id., at 918–920, 102 S.Ct., at 2834–2835 (REHNQUIST, J., dissenting). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech.

Fraser, 478 U.S. at 684 (emphasis added).

Notice how the first sentence ends with a reference to “sexually explicit” speech before an audience that “may include children,” and the second sentence begins by discussing a ban on the sale of “sexually oriented material to minors.”  Though the wording is not a verbatim repetition, the ideas are the same—the legal implications of exposing youth to lewd material.  The second sentence then ends with a reference to the First Amendment, noting how the same sales ban would be impermissible with respect to adults, while the third sentence begins with a reference to the First Amendment but ends in its application to children in public schools, thus emphasizing the distinction in the First Amendment’s application to youth and adults.  The Court concludes that the overarching goal identified in the cases is “to protect children . . . from exposure to sexually explicit, indecent, or lewd speech.”

By using dovetailing, the Court was able to build the following argument:  It is unquestionably permissible to restrict speech where children might be accidentally exposed to lewd material. Because accidental exposure may be regulated, it follows that intentional exposure through the sale of such material to youth may be regulated.  Because intentional exposure of youth to lewd material by commercial transaction may be regulated, intentional provision of lewd material to youth free of cost may also be regulated.  And, given that the First Amendment would likely prohibit the same regulations with respect to lewd material and adults, the common thread of these cases is to keep lewd material away from youth.  In other words, the Court used dovetailing to establish the principle that the First Amendment does not protect the provision of lewd material to youth in any form.

By leading the reader each step of the way and connecting the links in the chain of reasoning through repetition and summation, the Court made its ultimate conclusion inescapable.  Thus, dovetailing not only improves the flow of writing but also increases the persuasion of the writer’s argument and ensures sound reasoning.

Looking for more ways to increase your flow? 

  • Consider using temporal words, such as “first,” “next,” “then,” and “later,” to orient your reader to time.
  • Vary your sentence length, using short sentences for emphasis.
  • Add in transition words such as “therefore,” “consequently,” or “accordingly” to help your reader draw connections between assertions.
  • Structure your paragraphs around topic sentences.

 

[i] Mark Damen, A Guide to Writing in History and Classics, available at https://www.usu.edu/markdamen/WritingGuide/05choppy.htm.

[ii]MasterClass, Writing Flow: How to Make Your Writing Flow, available at https://www.masterclass.com/articles/writing-flow.

[iii] Laurel Currie Oates and Anne Enquist, The Legal Writing Handbook:  Practice Book, Ex. 23.1A (Aspen 4th ed. 2002).

July 11, 2023 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Thursday, July 6, 2023

Courts are Regulating Generative AI for Court Filings.  What Does This Mean for Legal Writers? 

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Courts are Regulating Generative AI for Court Filings.  What Does This Mean for Legal Writers? 

There’s been a flurry of court-initiated activity around using generative artificial intelligence (generative AI) to draft court filings. One court has sanctioned the misuse of OpenAI’s large language model, ChatGPT.  Perhaps as a result, at least four more have issued orders regulating the use of generative AI in legal writing.

What’s going on here?  And what does this activity mean for legal writers?

How It All Began:  A Federal Court Sanctions Lawyers’ “Bad Faith” Use of ChatGPT “Fake Cases” in a Court Filing

In March of this year, two lawyers filed a motion in the United States District Court for the Southern District of New York that included citations to multiple court opinions that did not exist.  In Mata v. Avianca, Inc., the plaintiff’s lawyers admitted that one of the lawyers had used ChatGPT, “which fabricated the cited cases.”  The lawyer said that he did not think at the time that ChatGPT could fabricate cases.  According to the court’s finding of fact, the lawyers persisted in representing the cases as real even after they became aware that they were fake.

In its order sanctioning the attorneys, the court noted that although “there is nothing inherently improper about using a reliable artificial intelligence tool for assistance,” lawyers must “ensure the accuracy of their filings.”   As such, the Court sanctioned the lawyers for citing the fake cases under Federal Rule of Civil Procedure 11(b)(2), which required lawyers to certify that, after a reasonable inquiry, the lawyers believed that the “legal contentions [in the court filing were] warranted by existing law.”   The court suggested that, perhaps, if the lawyers had “come clean” about the fake cases in a timely manner, the lawyers might not have violated Rule 11 simply by mistakenly citing the fake cases.  But because the lawyers had engaged in acts of “conscious avoidance and false and misleading statements to the Court” and had continued to stand by the fake cases even after judicial questioning, they had engaged in bad faith, which merited sanctions. 

How Courts are Regulating Generative AI—And What They Appear to Be Concerned About

Between the time news reports began circulating and the Mata court’s order issuing sanctions, other courts acted to prospectively regulate generative AI use in cases before them.  Their rationales for regulating generative AI use in court filings vary but are focused on four concerns:

  • ensuring the involvement of human beings in checking generative AI’s accuracy;
  • ensuring that cited legal authority cited exists and is accurately described;
  • protecting sensitive information from inadvertent disclosure to others; and
  • ensuring lawyers do their own writing.

Human Beings Must Check Generative AI’s Output for Accuracy

In the United States District Court for the Northern District of Texas, one judge created a new “Judge Specific Requirement” that requires all attorneys and pro se litigants to certify for all filings in the case that either (1) they will not use generative AI to draft court filings or (2) a “human being” will check any portions generated by AI “for accuracy, using print reporters or traditional legal databases.”

The judge explained that “legal briefing” is not a good use of generative AI because it is “prone to hallucinations [(i.e., inaccurate information)] and bias.” Concerning bias, the judge said that because large language models like ChatGPT have not sworn an oath to “faithfully uphold the law and represent their clients,” they are “unbound by any sense of duty, honor, or justice” that applies to lawyers and act only according to “computer code” and “programming.” 

The judge advised parties that they could, if they desired, move for leave to explain why generative AI “has the requisite accuracy and reliability for legal briefing.”  The judge provided a certification form that requires a guarantee that

[n]o portion of any filing in this case will be drafted by generative artificial intelligence or that any language drafted by generative AI --including quotations, citations, paraphrased assertions, and legal analysis -- will be checked for accuracy, using print reporters or traditional legal databases, by a human being before it is submitted to the court. I understand that any attorney who signs any filing in this case we'll be held responsible for the contents thereof according to the applicable rules of attorney discipline, regardless of whether generative artificial intelligence drafted any portion of that filing.

A magistrate judge In the United States District Court for the Northern District of Illinois articulated a similar rationale when he added a certification requirement to his Standing Order for Civil Cases.   The judge required that any party that uses any “generative AI tool” for “preparing or drafting” court filings must “disclose in the filing that AI was used and the specific AI tool that was used to conduct legal research and/or to draft the document.”  The judge said that parties should “not assume” that relying on generative AI would “constitute reasonable inquiry” under Rule 11 of the Federal Rules of Civil Procedure.  The Standing Order focused on the unreliability and inaccuracy of legal research as the reason for the certification requirement. It said that the judge would “presume” that the certification means that “human beings . . . have read and analyzed all cited authority to ensure that such authority actually exist.”

Court Filings Must Have Accurate Citations to Law and the Record

Another judge focused specifically on the accuracy of citations to the law in his order requiring that the use of “artificial intelligence” for court filings be disclosed.  In a standing order for a judge sitting in the United States District Court for the Eastern District of Pennsylvania, the judge required that all attorneys and pro se parties make a “clear and plain factual statement” that disclosed the use of “AI . . . in any way in the preparation” of court filings and certify “every citation to the law or the record . . . has been verified as accurate.”

Parties Must Protect Confidential and Business Proprietary Information from Disclosure to Generative AI

In the United States Court of International Trade, one judge issued an “order on artificial intelligence” to protect “confidential or business proprietary information” in court briefs.

In the Court of International Trade, specific rules protect “sensitive non-public information owned by any party before it” from disclosure.  As such, the court requires filings to identify which information contains sensitive information.  It also requires lawyers to file “non-confidential” versions of briefs that remove this information.  Lawyers practicing before the Court of International Trade can receive sensitive information if they are certified by the court to do so.

In this context, the judge explained his concern that “generative artificial intelligence programs . . . create novel risks to the security of confidential information.”  Because lawyers might prompt these programs with confidential or business proprietary information to get generative AI to provide useful outputs, a risk arises that generative AI will “learn” from that prompt, thereby enabling the “corporate owner of the [generative AI] program [to retain] access to the confidential information.”  The order says this implicates “the Court’s ability to protect confidential and business proprietary information from access by unauthorized parties.”

Accordingly, the court ordered all submissions drafted with the assistance of generative AI by using “natural language prompts” be accompanied by (1) a disclosure identifying which generative AI “program” was used and which portions of the document had been drafted with generative AI assistance, and (2) a certification stating that the use did not result in any sensitive information being disclosed to “any unauthorized party.”  The order also specifically allowed any party to seek relief based on the information in this notice.

Lawyers Must Do “Their Own Writing”

In the case of Belenzon v. Paws Up Ranch, LLC, filed in the United States District Court for the District of Montana, a judge ordered that an out-of-state attorney admitted pro hac vice must “do her own work.”  The court said that this included doing “his or her own writing.” As such, the court prohibited the pro hac lawyer from using “artificial intelligence automated drafting programs, such as Chat GPT.”  The court did not explain its reasoning in the order.

What Should Legal Writers Do in This New Regulatory Environment?

These varying approaches to generative AI (as well as the availability of it) put pressure on legal writers to anticipate what they should do in this new environment.  Here are some suggestions for taking action.

Check local court rules, standing orders, procedural orders issued in your case, or the published preferences of judges to see if a judge has rules on generative AI use. This is a quickly developing area, and you can expect that more judges—and perhaps even entire courts in their local rules—will begin to consider whether and how they regulate generative AI.

Read the new regulations carefully. How judges will regulate AI in their courtroom will likely vary, so read carefully and avoid assumptions.  For example, in the new regulations, the courts vary how they refer to the technology they are concerned about, using both “generative AI” and “artificial intelligence” as identifiers. But these terms do not necessarily mean the same thing. “Artificial intelligence” generally means a broader category of tools than “generative AI.”  For example, Word’s Editor is powered by artificial intelligence.  Lexis already uses “extractive artificial intelligence” in some of its research products. Brief Catch represents that it uses artificial intelligence in its products. These are all AI tools that do not fall within the category of generative AI. 

A lawyer attempting to comply with AI regulation needs to know the scope of what the court wants to regulate.  That is, does a court requiring a certification about “artificial intelligence” mean to include tools like those mentioned above?  If you are not sure what the judge means, it might be wise to ask.  (and judges should be as clear as possible about what artificial intelligence tools they are concerned about so as not to unintentionally regulate writing tools too broadly.  For example, Word’s Editor does not seem to raise the concerns the judges have identified yet fits within the category of “artificial intelligence.”)

In addition, courts vary in what they want you to do about generative AI. One court—in one specific circumstance—has prohibited its use.  But the rest—so far—ask for various attestations about what and how it has been used.  As time progresses, you may appear before courts regulating generative AI differently.  Get clear on the requirements and add the requirements to your court-specific writing checklist.

If you use generative AI to help you write, treat it like any other writing tool. Generative AI does not replace you; you are responsible for the quality of your writing.  The courts are right: no currently available generative AI tool replaces a lawyer in producing written documents.   But there is potential for generative AI to help legal writers write more clearly, precisely, correctly, and persuasively.  This could mean better and more cost-effective results for clients—and more efficient and effective practice before the courts.  In other words, courts could benefit from lawyers competently and carefully using generative AI as a legal writing tool.

Plus, enterprise versions of generative AI tools are rapidly developing for use in the legal domain, which may make using generative AI for legal writing less risky.   Some products already exist; others are on the way. These tools are meant for lawyers, and some lawyers are already using them.  Unlike the publicly available all-purpose large language models like ChatGPT and Bard, these fine-tuned and further trained models will likely better protect confidential client information; produce more accurate, reliable, and verifiable for legal research; and be more competent at generating effective legal writing.  In other words, future generative AI writing tools will do more to address the courts' concerns about generative AI.  Regardless of whether you are using general purpose or enterprise generative AI for your legal writing, one thing won’t change: you are ultimately responsible for the written work you produce.  You are the human being the courts care about. You cannot outsource your judgment and competence to generative AI.  It does not evaluate information, legally reason, or do legal analysis (even though it might appear to). It does not have a professional identity committed to the rule of law, just results, and fair play.  What it does is this:  It uses mathematical computations to predict the most appropriate words to provide in response to a prompt. Thus, to use generative AI ethically and responsibly, you must

Understand how generative AI works. Generally speaking, you have an ethical duty to be competent in using technological tools as part of your practice.  If you don’t have a basic understanding of natural language processing, machine learning, and large language models, you should get that understanding before you use generative AI.  There’s a strong argument that generative AI is here to stay as part of legal practice.  Learn all you can.

Be careful about disclosing confidential information in prompting generative AI; know how your prompts are used and retained. How generative AI treats the information you give it is in flux.  For example, while ChatGPT did not have a setting that kept prompts from training the large language model when it was released to the public, it does now.  And it also now has a setting that will allow users to limit the storage of prompts to 30 days.  While these changes are great examples of the rapid evolution of generative AI in response to user feedback, those changes don’t solve all of the lawyer’s problems concerning sharing confidential client information with generative AI. 

In my opinion, the question of what information can be shared with generative AI is a complex question to which only simple answers have been offered so far.  Part of the complexity comes from variations in state ethics rules.  Depending on your state ethics rules, you may have more or less leeway to ethically include client information in prompts.  In addition, if disclosing client information in a prompt furthers the client’s interests, perhaps there is room for a lawyer to argue that a disclosure to generative AI is warranted.  Moreover, it might be arguable that prompts for generative AI may, if carefully crafted, fall into the “hypothetical” rule that appears in many states’ confidentiality rules.  But, at this point, little certainty exists about how state bars will apply confidentiality rules when client information is shared in a generative AI prompt.   I hope that bar regulators provide answers to these questions about confidentiality—perhaps in ethics opinions. 

Know your legal obligations regarding data privacy and cybersecurity. The ethics rules about confidentiality don’t fully address the Court of International Trade Judge’s concern about disclosing proprietary information.  That information might be subject to other disclosure laws.  Thus, you should also consider whether you have legal duties that extend to the protection and privacy of your clients’ and others’ information in the generative AI context.  In addition, if you work for a law firm, you may have policies that address sharing and using information in the firm’s possession.  You should know what those policies are. 

And finally, check every AI-generated citation, fact, statement of law, and analytical statement. This is the dominant theme of the courts’ orders thus far: lawyers are failing to check the accuracy of generative AI’s output.  But if you are a lawyer, you already know that ensuring the accuracy of the work you produce is a fundamental ethical obligation.  So, no matter how confident you are in the output of a generative AI tool, you must always check the output that is purported to be factual or authoritative.  ChatGPT, for example, warns you about this.  At the bottom of its context window webpage, it states, “ChatGPT may produce inaccurate information about people, places, or facts.”   So, as you have always done with your legal writing, check the accuracy of every citation.  Read every legal authority to ensure it stands for the legal propositions you claim. Update and validate your authorities.  Double-check every fact.  Ensure that every step in the argument is logical, reasonable, ethical, and persuasive.  If you use generative AI to revise or edit your work, check every change to ensure it is correct.

What are your thoughts about generative AI and legal writing?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the founding director of the Institute for the Advancement of Legal Communication and currently serves as Stetson’s Faculty Director of Online Legal Education Strategies.  Among other things she’s up to right now, she’s currently studying generative AI and its impact on legal communication. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

July 6, 2023 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)