Appellate Advocacy Blog

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

Saturday, April 16, 2022

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

April 16, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, April 7, 2022

The “It-Cleft” Sentence:  Grammar Choice, Persuasive Effect

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

The “It-Cleft” Sentence:  Grammar Choice, Persuasive Effect

The Problem with “It Is”

Modern legal writing doctrine says this:  Almost never start a sentence with “it is.”  This advice has a good reason: “It is” at the beginning of the sentence often signals a throat-clearing phrase, a phrase that offers little information to readers and delays them in getting to the point of the sentence.  Over at his blog, Legible, Wayne Schiess describes a throat-clearing phrase as a “flabby sentence opener” that makes writing weak and less concise:  He gives two examples of throat-clearing phrases that start with “it is”: “It is clear that,” and “It is important to point out that.”  Both are empty openers.

What’s the problem with “it is” in the context of throat-clearing?  First, “it” is a “dummy” pronoun—a pronoun that points to no particular noun.  And “is” is a being verb that evokes little, if any, imagery or action.   So, more or less, “it is,” in the context of a throat-clearing sentence opener, says “nothing exists.”   Good job, legal writer.  What a great way to start a sentence for a busy legal reader who craves vivid detail, precision, and concision.   

Because of the characteristics of “it is” in the sentence-starting context, plenty of excellent legal writing instruction directs writers to find these phlegmy phrases and clear them from the informative writing the reader cares about.  Typically, I tell my students to use the “find” tool in their word processors to search for “it is,” and when the phrase appears at the beginning of a sentence, revise the sentence to get rid of the extra words.  But am I right?

Enter the “It-Cleft” Sentence

Not quite. The “it-cleft” sentence, which starts with “it is” or “it was,” is an exception to the rule.  Unlike throat-clearing, an it-cleft sentence can be used to enhance the persuasive effect of legal writing.  Because an it-cleft gives a writer another way to place emphasis on the most important idea in a sentence, it can be a useful persuasive writing tool.  

The “it-cleft” sentence is not a new idea.  Composition experts and linguists know and write about “cleft” sentences.  A cleft sentence is easily identified because the sentence’s clauses are “split” and then re-ordered in an unusual way. That is, the usual is upended to create a new point of emphasis. Typically, that point of emphasis is at the beginning of the sentence.  After a sentence is cleft, the sentence will start with “it” and followed by a being verb (i.e., is, are, was, were).  (Side note:  There are other options for starting a cleft sentence including “what” and “all.”)

It-Cleft Examples:  Before and After

Here are two examples, adapted from Supreme Court opinions:

Garcetti v. Ceballos, 547 U.S. 410 (2006).

  • Non-cleft: The First Amendment secures public employees’ rights to speak as citizens addressing matters of public concern.
  • It-cleft (emphasizing citizens speaking): It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).

  • Non-cleft: The hostility surfaced at the Commission’s formal, public hearings.
  • It-cleft (emphasizing location): It was at the Commission’s formal, public hearings that the hostility surfaced.

The examples show that the “it-cleft” gives writers an option for changing the point of emphasis in a sentence. In the first example, the emphasis is on the First Amendment law and what it says.  But in the cleft sentence, the emphasis changes to people—speaking citizens and public employees.   By moving the “speaking citizen” to the beginning of the sentence and then “pointing” at that language with “it is,” the reader’s attention is drawn away from a general statement of First Amendment law to a specific assertion about public employee citizen rights.  Although there’s no real difference between the content of the two sentences, the take-away of the sentence noticeably changes.

The mechanics and effect in the second example are similar.  In the non-cleft sentence, the emphasis is on the action--“hostility.”  But in the cleft sentence, the emphasis is on the location of the hostility—the “hearings.”   We might imagine that Justice Kennedy, who wrote the Masterpiece Cakeshop opinion, could have profitably included the cleft sentence to emphasize his point.  In Masterpiece Cakeshop, Justice Kennedy wrote that a state civil rights commission had violated the Free Exercise clause of the First Amendment by being openly hostile to the religion of a party before it. He said that hostile comments caused the Court to “doubt on the fairness and impartiality” of the commission’s adjudicative hearings.  Unlike in other cases where government representatives had made discriminatory remarks, the commissioners’ comments in Masterpiece were made in the adjudicative hearings that were both public and on the record.

Kennedy might have used the it-cleft technique to further emphasize that the location of the hostility—at the public, on-the-record, adjudicative hearings—mattered to his reasoning.  A cleft sentence would bring more attention to the location’s importance.

Three Suggestions for Using It-Cleft in Persuasive Writing

Here are three suggestions for using it-cleft sentences.

  • Use an it-cleft to double-down on an important contrast. In the Masterpiece Cakeshop example, we might imagine a paragraph that used the it-cleft sentence in a sentence like this:

The Civil Rights Commission’s treatment of the party showed impermissible hostility toward the party’s sincere religious beliefs. That hostility did not just occur in the private comments of the Commissioners.  Instead, it was at the Commission’s formal, public hearings that the hostility surfaced.

In this example, the it-cleft adds extra emphasis to the contrast between the ideas in the last two sentences.  The writer first tells the reader where the comments did not occur; then, for emphasis, the writer focuses the reader on the location of the comments.  While the writer could have written, “Instead, the hostility surfaced at the Commission’s formal public meetings,”  the writer took advantage of the it-cleft to add extra emphasis to the contrast.

  • If you can, simplify and shorten an it-cleft. An it-cleft is already a complex grammatical construction, so simplifying and shortening an it-cleft sentence can make the sentence more accessible. Take for example, the Garcetti sentence: It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees. The sentence effectively emphasizes the right to speak, but the sentence is a little clunky.  How about this?

It is the right as citizens to speak on matters of public concern that the First Amendment secures.

The sentence is not a great deal shorter than the original, but I like it better.  Admittedly, the language about the “public employees” is gone from the sentence.  But what if the context, rather than the sentence itself, supplied the necessary meaning?  Maybe that context would look something like this:

Public employees are more than government workers; they are citizens who are concerned with the issues facing their communities. It is their right as citizens to speak on matters of public concern that the First Amendment secures.

  • Like other persuasive writing devices, use it-cleft sentences be used sparingly. It is the unique sentence construction that produces the persuasive effect.  (See what I did there? 😊) But the sentence can’t benefit from its novelty if the construction is over-used.

April 7, 2022 in Legal Writing, Rhetoric | Permalink | Comments (0)

Tuesday, March 22, 2022

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 8, 2022

Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

  • a majority of jurisdictions have adopted the claim;
  • the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.

March 8, 2022 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (1)

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

February 22, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Saturday, February 19, 2022

Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge

In my LRW II classes last week, we reviewed persuasive Statement of Fact headings.  I repeated my usual points on making the headings a bit catchy, but completely honest and logical.  I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents.  See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). 

In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.

Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,

https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge.  As Garner reminded readers he:  “occasionally interview[s] long-dead authors.  Another name for it is active reading.  Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.”  In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court.  Id.  I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.

Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.”  The Justice’s hypothetical reply is especially helpful for all appellate writers to remember:  “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.”  Id.  As I told my students, a careful summary where parties agree can sometimes be helpful.  Garner notes Justice Rutledge might say: 

This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief.  It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains.  It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.

Id.    

 In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.”  Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect.  Id.  Garner explained Justice Rutledge’s point on dealing with adverse facts this way:  “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.”  Id

Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility.  Id.  Garner concludes his article asking for the Justice’s concluding thoughts.  The Justice’s hypothetical reply is:  “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.”  One great way to add interest is to give your court clear, concise, and interesting facts.

I wish you happy drafting.

February 19, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (1)

Thursday, February 3, 2022

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

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.

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

I’m teaching The First Amendment this semester, which means I’m reading very closely a lot of United States Supreme Court opinions on freedom of expression. (An aside:  One of my favorite opinions for a close read of persuasive writing is Justice Alito’s dissenting opinion in Snyder v. Phelps; although I largely disagree with him on his reasoning and conclusions in that opinion, the opinion is a great example of using details and evoking emotion in support of reasoning.)

I was closely reading the majority opinion in RAV v. City of St. Paul, written by Justice Scalia, when I noticed this sentence, in which the Justice describes Respondent City of St. Paul’s argument about why its Bias Motivated Crime Ordinance did not violate the First Amendment (Scalia, writing for the majority, found that it did):

According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.”

Appellate lawyers know the ALWD Guide to Legal Citation or The Bluebook: A Uniform System of Citation rules for using [sic].  If there is a mistake in a quotation, “such as spelling, typographical, or grammatical errors,” says the ALWD Guide, authors may use [sic] to indicate that the error is not their own but is instead part of the original quotation.  Alternatively, authors may fix the error themselves, using brackets to correct the original author’s mistake. (For more, consult ALWD Guide Rule 39.6, Indicating Mistakes in the Original and The Bluebook Rule 5.2, Alterations and Quotations Within Quotations.)

Knowing these rules, I must confess that I was distracted by the [sic] in Justice Scalia’s sentence rather than confident that I understood his meaning.  What exactly was Justice Scalia’s concern that [sic] was signaling?  Was he suggesting that “on” should have been omitted? Or was he saying that the right word to use here was “upon”? Or was he suggesting something else altogether?  And, I wondered, how did the misuse of “on” make a difference to his opinion?  Or to St. Paul’s argument?  Or to anything for that matter?  Was Justice Scalia drawing my attention to the error just for the sake of showing that St. Paul had made an error? And, if so, why would Justice Scalia do that? 

Scalia’s choice to use [sic] here rather than pursue some other alternative made me wonder:  Even if a legal writer may draw attention to another writer’s error by using [sic] rather than correcting the mistake, should the legal writer do so?  Answering that question requires thinking about not only about how to accurately signal a mistake in a quotation, but also about how [sic] influences the persuasiveness of the document and the reader’s perception of the writer.

The first thing to think about when considering whether to use [sic] is that [sic] has the potential to create unnecessary ambiguity and distraction. [Sic] means more than what the ALWD Guide or The Bluebook suggest.  That is, although it’s true that [sic] can mean grammar or spelling error, it can also mean the presence of unexpected language or phrasing.  The Redbook, in fact, suggests that [sic] can be used to indicate either an error or an “oddity” in quotation.  

Miriam-Webster’s usage notes give this example. The Toronto Maple Leafs are not, in fact, the Toronto Maple Leaves.  The name does not reflect a grammatical error but an unusual usage of the word “leaf.”  Thus, a writer quoting the phrase “Maple Leafs [sic]” isn’t indicating a spelling error (i.e., the misspelling of the plural form of ‘leaf’) but instead is indicating an unexpected or novel usage of the word “leaf.”  So, when a writer uses [sic], particularly where there isn’t an obvious error, [sic]’s meaning may be ambiguous to the reader.

 In the case of Scalia’s sentence, the error of “impact on” wasn’t obvious to me, and so I was confused and distracted by its use.  I thought perhaps he was pointing to a grammatical error that I didn’t recognize, or, now that I’ve checked The Redbook, I think maybe he might have been pointing out one of those “oddities” The Redbook refers to.   I’m still not sure.

 I researched what Justice Scalia might have meant when he wrote “impact on [sic].”  The Redbook told me that “impact” as a verb is of “questionable” use, and that better choices would be “affect” or “influence.” So maybe Justice Scalia was signaling this questionable use. But both the ALWD Guide and The Bluebook say that [sic] should follow the error, and the ALWD Guide emphasizes that [sic] should be inserted “immediately after the word containing the mistake.” So, if Justice Scalia was using [sic] to indicate this disfavored usage, then [sic] should have followed “impact” rather than “on.”

Regarding the preposition “on,” The Redbook suggested that “on” is a preposition that commonly relates its object to another word based on the concept of space. So, perhaps Justice Scalia was signaling that “on” was misused in the phrase “impact on the right of free expression” because the relationship between St. Paul’s ordinance and the right of free expression is not one of space.  If that were Justice Scalia’s concern, then perhaps he used [sic] to signal to the reader that a more deftly written sentence would have left out “on” and simply said “impact the right of free expression.”

But, even then, perhaps Justice Scalia was not signaling that “on” was an “error” to be fixed at all.  Maybe he simply meant that “impact on” was an unexpected usage or an oddity.  The Redbook offers that “[t]he use of prepositions is highly idiomatic: there are no infallible rules to guide you in deciding what preposition to use with a particular word (emphasis added).  If that’s the case, then, Justice Scalia’s [sic] might have been expressing that “impact on” is an unexpected or unusual usage in the sentence’s context.

Ultimately, I wondered why Justice Scalia didn’t just change “impact on” to “[affect]” if that was his concern.  Both The ALWD Guide and The Bluebook would have allowed him to do so. But I think I can understand why Justice Scalia might not want to change St. Paul’s specific word choice.  If he made that kind of change, he would be doing more than addressing a simple and obvious error in the text, as he would do if he changed a comma to a semi-colon, corrected a misspelling, or changed a singular verb to a plural one.  Arguably, by changing “impact” to “affect,” Justice Scalia might actually have altered the meaning of St. Paul’s argument ever so slightly.  And, because he was quoting St. Paul, changing meaning is a legitimate concern.

Even after my research, I’m still not sure what Justice Scalia had in mind with “impact on [sic].”  But I am sure that I was distracted by its use, and I focused more on [sic] than what Justice Scalia was saying about the merits of St. Paul’s argument.  I wonder what would have happened if Justice Scalia had just left the quote alone.  While I don’t have scientific proof for my suggestion, I imagine most readers would easily understand the general meaning of “impact on” as it was used in the St. Paul’s quote.  It seems that the use of [sic] in the sentence attracts the reader’s attention to an unimportant point and wastes the reader’s time.  

The second thing to consider when thinking about [sic]’s persuasive use is that note that [sic] can be interpreted as a sneer—it can, in a contemptuous way, needlessly call attention to others’ errors. Miriam-Webster’s usage notes refer to this as problem of “etiquette”; in the context of legal writing, we might think of it as a problem of professionalism. Miriam-Webster says that [sic] can be used to “needlessly mak[e] a value judgment on someone else’s language habits.”  Even Garner’s Modern English Usage says that [sic] can be used “meanly,” as a way to show the writer’s sense of superiority. The Redbook says, notably, that [sic] “should never be used as a snide way to highlight the errors of another writer.”  But Miriam-Webster points out that “sometimes pedantic condescension is precisely what [the writer is] going for.” Bottom line:  don’t use a “sneering [sic].”

In the context of writing persuasively in the law, I’d take the concern about the sneering [sic] a bit further:  A sneering [sic] not just about etiquette or professionalism; using [sic] to point out an error in a party’s argument can also represent an appeal to a logical fallacy, the ad hominem argument.  The ad hominem argument is a fallacious argument that gets its strength from undermining a logical, reasoned argument by attacking the character of a person making the argument. This usage might be popular in situations where a writer uses [sic] to implicitly suggest that the argument contained in quotation cannot be trusted because the quote’s author is incapable of writing well.  In other words, using [sic] can distract the reader from an arguments’ merit and instead implicitly suggest to the reader there is something untrustworthy about the argument because of the writing errors of the author. If it’s the case that the errors represent an untrustworthy argument, there’s nothing fallacious about using [sic]. But, when the legal writer knows that [sic] is an implicit attack on the character of another, than [sic] is a problem.

So, where does this analysis of [sic] leave the legal writer?  First, it should leave the legal writer with the sense that correcting errors in other people’s writing is not only an accuracy problem but also a rhetorical one. That is, when writers choose to use [sic] or not, they make rhetorical choices.  Moreover, it should leave the writer with the sense that [sic] can be either a helpful corrective or an unhelpful distraction, and that the writer needs to understand these potential rhetorical effects on the audience before making a choice about using [sic].

Here are some best practices for using [sic] to correct an error in the quotation of another writer.

  • When possible, prefer not to use [sic]. Unless it really matters, don’t use [sic] to indicate an error or an odd or unexpected usage, I’d argue that Justice Scalia would have lost nothing—not accuracy, understandability, or influence--by leaving the quote from the City of St. Paul alone and avoiding [sic].  No reader would be confused that the phrase “impact on” was attributable to the City of St. Paul and not Justice Scalia.  And the phrase itself is not obviously “wrong.”  So, no harm, no foul.
  • Prefer paraphrasing instead. If you can avoid quoting a passage with an error and a paraphrase would work just as well, do that.  I think Justice Scalia could have been just as effective in his writing if he had paraphrased St. Paul’s argument like this: “St. Paul argues that the City did not intend its ordinance to affect the accused person’s free expression . . . .” Would the reader’s experience have been worse if Justice Scalia had paraphrased that portion of the quotation? 
  • If paraphrasing won’t work, prefer to fix the error. When an error must be corrected, or the error is distracting, correct it according to the ALWD Guide and The Bluebook rules rather than use [sic].  Frankly, correcting the error is a kinder, more professional thing to do. The Redbook agrees: “[I]t is better to correct those minor mistakes using brackets.” There are some instances, however, where correcting an error in a quote may not be the best option.  For example, you may not want to put your words in the mouth of your opponent.  In that case, [sic] might be best.  But, if the exact words aren’t that important, don’t quote the problematic content in first place.  Paraphrase instead.
  • If nothing else works, use [sic]. If rigorous accuracy in representing the original quotation is a must, then use [sic].  For example, rigorous accuracy might be needed when quoting statutes.  Another situation that would call for using [sic] to indicate errors in a quotation might be when a legal writer is quoting written or transcribed witness testimony.  If altering the testimony might be viewed as unethical or deceptive, then use [sic].  But don’t use [sic] repeatedly to indicate the same error by the same quoted author; one [sic] should be enough to put your reader on notice of the repeated mistake.

Thanks for reading! What are your thoughts on [sic]?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

February 3, 2022 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Thursday, January 27, 2022

Does Your Choice of Fonts Really Matter?

As a legal writing teacher, I emphasize to my students that pathos in legal writing is important. One aspect of pathos is using the medium to influence the reader to have a favorable view of your writing. In other words, a good legal writer wants a persuasive document to look good in addition to being written well. And part of looking good means following rules, conventions, and traditions that apply in the court to which the writing is addressed. Not everyone agrees on what makes a document look good, and one of the recent battles has been over fonts (yes, we legal writers fight over some interesting things).

Many years ago, of course, appellate advocates typed their documents on a typewriter. Typewritten documents were in either pica or elite type. There simply weren't very many choices to make about how the type would look in a document.

Then came word processing programs. The default font in the early days seemed to be Courier; after all, it looked a lot like type from a typewriter. All you needed to do was open up your word processing program and there it was. Courier felt right, it felt like security.

Courier or Courier New (with maybe a little Times New Roman thrown in) sufficed for many years. Older judges were accustomed to it; it gave them a sense of security, too. But then a new generation of judges showed up--suddenly Courier New wasn't so new anymore. Make it prettier! Make it more readable! Make it so I can read it on a tablet! Those were the clarion calls from on high.

So what font is acceptable? What font is desirable? It really all depends on who you ask, but for all intents and purposes it appears Courier and Courier New have been outlawed or at least relegated to the dust bin of antiquity where old VCR tapes and CDs now reside.

In my home state of North Carolina, the Rules of Appellate Procedure were changed a few years ago to permit only proportionally-spaced fonts with serifs. No more non-proportionally-spaced fonts (we're looking at you, Courier and Courier New). As acceptable examples, the rules mention Constantia and Century. Constantia seems like an interesting choice, but someone making the rules really must like it--a fact that should be kept in mind when writing to the rule-making body known as the North Carolina Supreme Court.

Some studies have shown that fonts with serifs are more readable, but that may not be true for reading on a computer or tablet. Not everyone agrees. In fact, courts like the appellate courts of Connecticut require Arial or Univers fonts, both of which are sans serif fonts and both of which appear to an outsider to be random choices.

The bottom line, again, is that legal writers hoping to persuade an appellate court must follow the rules. Where there are multiple possibilities to choose from, though, the question may come down to whether to use a serif font or a sans serif font. We may not be able to agree about what is best, but we can all agree that there are some fonts that are unprofessional, ugly, or easily recognized as hard to read. Just because a high-powered lawyer might make the ill-advised decision to use Comic Sans for an important letter, for instance, doesn't mean we should use it.

Me, I was always fine with Courier New. But I can roll with the times. And like every advocate, I want my audience at an appellate court to feel good (or at least not be peeved) while reading my brief. Century Schoolbook is my favorite now; if it's good enough for the Supreme Court of the United States, it must be good.

The answer to the question asked in the title for this post is yes, your choice of fonts does matter if it matters to your readers. I've adjusted, and so can you.

But don't even get me started on WordPerfect versus Word.

January 27, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Saturday, January 15, 2022

Unconventional Writing Tips

The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.

1.    Don’t write.

The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.

Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.

2.    Don’t let anyone read your first draft – or your final draft.

Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.

Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”

Yeah, whatever. Go away.

Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”

Yes, and your comments about my writing have just been deleted.

The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”

None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.[1]

The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.

3. “Write drunk. Edit sober.”[2]

To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.

If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.

4.    Invent words.

Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.

Think Obamacare.

Think Bushisms.

Think Californication.

What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.

5.    Sometimes, throw IRAC/CRAC in the proverbial garbage.

In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.

Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.

Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.

Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…

Blah, blah, blah.

Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:

The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.

Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.

6.    If it sounds good to the ear, write it and keep it.

When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:

Don’t use passive voice.

Don’t end sentences with a preposition.

Don’t mix verb tenses.

This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:

Use common sense.

Trust your judgment.

Rely on your instincts.

After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it.  Be sure, however, that what you hear – and write – is grammatically correct.

7.    Get a little nasty sometimes.

People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.

To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.

Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.

In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit.  Consider the following:

Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.

Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.

After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.

8.    Don’t edit too much.

Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”

These people are so annoying and truly don’t see the forest for the trees.

The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.

Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.

9.    Write like a human being.

Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?

Be conversational.

Be humorous (in appropriate circumstances).

Be straightforward.

In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”

Huh? Have you ever heard anyone use the word axiomatic during a conversation?

Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.

People don’t talk like that. You shouldn’t write like that.

Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:

Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.[3]

The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.”[4] The questioner’s response? “Great answer.”[5]

Indeed, it was.

10.    Ask questions.

Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage.[6] In so doing, Roberts wrote as follows:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?[7]

Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.

So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.

 

[1] Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.

[2] Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).

[3]  Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)

[4] Id. at 1.

[5] Id.

[6] 576 U.S. 644 (2015).

[7] Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)

January 15, 2022 in Appellate Advocacy, Appellate Justice, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Using E-Prime to Add Clarity and Save Words

    I hope you are all enjoying 2022 so far.  As you look for ways to refresh your writing in the new year, consider using E-Prime.  Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’”  See Christopher Wren, E-Prime Briefly:  A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.

    While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing.  For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words.  Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.   

    As Mark Cohen explained:  “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.”  Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing,  https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020).   Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.”  Id. 

    Wren also provides great examples of E-Prime removing passive voice and shortening clauses.  Wren, A Lawyer Writes in E-Prime, at 52.  Here are two of Wren’s examples:

Before:   Doe’s assertion that he was prejudiced by the joint trial is without merit.

After E-Prime:  Doe’s assertion that the joint trial prejudiced him lacks merit.

Before:  Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.

After E-Prime:  Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.

Id. 

    As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice.  Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives.  Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts.   Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.

    In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause English­language communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.”  Id.  When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical.  But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “E­Prime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.”  Id.

    Thus, I urge you to give E-Prime a try.  With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.

January 15, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, December 19, 2021

What Do You Do When a Superior Court Misses a Conflicting Precedent in a Decision that Affects Your Case?

            Assume as you conduct your legal research that you come up with a decision that says exactly what you are hoping for and that the precedent, though rarely cited, remains good law. As you write, confident that the holding puts you in a strong position to prevail, the very court you are writing for comes out with a decision that states that the court has never endorsed the very proposition your newly discovered precedent establishes. You scour the new opinion to see how they distinguished the case you found, because, even upon a re-reading, it plainly conflicts with the court’s new holding. You find it is absent from the incompatible opinion – and went uncited in the briefs the court relied upon. How do you respectfully tell the court it is wrong?

            I thought about those circumstances when I read the majority opinion in Whole Women’s Health v. Jackson,[1] the case concerning the new “Texas Heartbeat Act,” which authorizes bounties for private litigants who sue those who perform or assist in abortions. In the decision, Justice Gorsuch wrote, “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”[2]

            The statement made me stop as I read. I realized that the key word to prevent a conflict might be “unqualified.” Still, the thrust of the statement seemed at odds with an older precedent that I have relied upon in the past and recently invoked in a brief. In England v. Louisiana State Bd. of Med. Examiners,[3] the Court wrote that “[t]here are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” England, then, stands for the proposition that federal rights can be vindicated in federal court, and not be limited to state-court determinations, if federal jurisdictional requirements are satisfied.

            Jackson plainly focused on standing as an obstacle to subject-matter jurisdiction, at least as to some defendants. For that reason, Jackson and England can be reconciled. However, in my hypothetical version of these events, what if the Supreme Court rejected federal jurisdiction because it decided that state court disposition of the case should be sufficient and relied on the absence of a decision like England to reach that conclusion when further research would have shown there was existing precedent?

            An advocate in those circumstances will have several options to consider. First, you may conclude that a state-court decision may indeed be adequate or even preferable. State courts have authority to determine federal questions and are not bound by federal decisions by courts other than the Supreme Court.[4] Still, any federal decisions that are contrary to your position may still have persuasive value or produce some deference in state court where the federal decisions are “numerous and consistent.”[5]

            Another option is to seek to harmonize the two decisions by finding a way to argue that the new decision represented an exceptional situation, an outlier, that can coexist with or be distinguished from the general principle established by your earlier precedent.

            Another option is to argue that the older decision is good law, that the newer decision did not take it into account, and that the court should retain the older precedent. In my hypothetical version of what Jackson could have said, England not only provides an answer to the assumption made in “alternative Jackson” and thereby casts doubt on its reasoning for failing to address existing precedent as though it did not exist. Such an argument would need to point out that other doctrines depend on allowing vindication of federal rights in federal courts, so that more than one rarely cited precedent is at stake. If the court meets in panels, en banc reconsideration may be necessary.

            The bottom line, then, is that an advocate needs to explore options carefully, but still may be able to use that dusty but useful precedent that others forgot existed.

 

[1] No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).

[2] Id. at *10.

[3] 375 U.S. 411, 415 (1964).

[4] Johnson v. Williams, 568 U.S. 289, 305 (2013). See also, e.g., U.S., ex rel. U.S. Att'ys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014).

[5] Etcheverry v. Tri–Ag Service, Inc., 993 P.2d 366, 368 (Cal. 2000).

December 19, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, November 25, 2021

An Appellate Practitioner Gives Thanks

To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:

  • Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
  • Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
  • The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
  • American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
  • Dashes, colons, and semi-colons. They are way undervalued and underutilized.
  • Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
  • The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
  • The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
  • The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
  • Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
  • People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
  • Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).

Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!

November 25, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Tuesday, November 23, 2021

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

November 23, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, November 20, 2021

A Great Summary of Argument Can Make Your Brief

Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.”  Fed. R. App. P. 28(a)(7).  As a judicial clerk, I saw brief after brief where the authors ignored this rule.  Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.

Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case.   The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case.   Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument.  Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read. 

Recently, I read a fantastic Summary of Argument which really proves these points.  In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs.  As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health OrgSee https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.

You can find the briefs in Dobbs at SCOTUSblog here:  https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/.  But how do you choose which briefs to read?  I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs.  In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me.  One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.  

The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning:  “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.”  See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf.  Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.”  Id. at 2.  Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.”  Id. at 2-3.

Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue.  The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.

In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader.  The next time you draft a Summary of Argument, you might want to follow this wonderful example.

November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, October 18, 2021

(Clean[] Up) Your House, Your Car, Your Life--Not Your Citations

Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs. 

Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable."  All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets.  The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes. 

Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.

So, now for my unpopular opinion--Judges can use (cleaned up) all they want.  But attorneys should not unless the court rules expressly allow for it.

I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench.  The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh.  He wrote:

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up.  As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.

If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know.  And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.

So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).

 

October 18, 2021 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Saturday, October 16, 2021

Why We Should Use Proper Apostrophes, Even on Facebook

Like many, I use “Weird Al” Yankovic’s “Word Crimes” in my legal writing classes.   See    https://www.youtube.com/watch?v=8Gv0H-vPoDc.  In the past few years, I have added a note about not calling each other “morons” when I play the video.  Nonetheless, the song and lyrics still have great examples about why we need Oxford commas, correct apostrophes, and other basic punctuation, all to a catchy tune.  Often, I pair this discussion with an analysis of the 2018 Maine dairy delivery drivers’ dispute about a missing comma and overtime pay.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  I’ve blogged about the Maine case before, as it leads to great teaching discussions.  See also Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/ (“For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”).

This month, the District Court of New South Wales in Australia gave us another ruling on punctuation, this time involving defamation and a Facebook post.  See https://www.theguardian.com/law/2021/oct/10/missing-apostrophe-in-facebook-post-lands-nsw-real-estate-agent-in-legal-hot-water.  As New York Times writer Livia Albeck-Ripka explained in her article on the case, “a missing apostrophe in a Facebook post could cost a real estate agent in Australia tens of thousands of dollars after a court ruled a defamation case against him could proceed.”  https://www.nytimes.com/2021/10/11/world/australia/facebook-post-missing-apostrophe-defamation.html#:~:text=Missing%20Apostrophe%20in%20Facebook%20Post%20Lands%20a%20Man%20in%20Defamation,mark%20may%20cost%20him%20thousands.

In his Facebook post, real estate agent Anthony Zadravic appeared to accuse Stuart Gan, his former employer at a real estate agency, of not paying into the Australian government retirement fund for all of the agency’s employees, and not just for one employee.   Zadravic’s Facebook post stated:

Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation [for the Australian retirement system].  Shame on you Stuart!!! 2 yrs and still waiting!!!

Id.  Gan filed a defamation claim against Zadravic, alleging the Facebook post improperly stated Gan had not paid his contributions for any of his employees, since Zadravic did not use an apostrophe in “employees.”

Although Zadravic explained he meant the singular “employee’s” contributions for his own account, the court refused to dismiss Gan’s case.  The court ruled the plural “employees” without an apostrophe could “be read to suggest a ‘systematic pattern of conduct’ by Mr. Gan’s agency rather than an accusation involving one employee.”  Id.  Thus, the judge allowed the defamation case to move forward.

While there are lower standards for defamation in Australia than in the United States, for example, the punctuation point is well-taken.  Just as we teach our students to be cautious in their work texts and avoid imprecise language, emojis, and the like, we should also caution them be careful not only in content, but also in language on social media. 

My teen/twenty-something sons will roll their eyes (via emojis, no doubt) at my suggestion we use proper grammar on social media.  However, when our students and newer associates are posting about professional matters, they should err on the side of caution.  Many employers, in fact, have strict guidelines on social media posts, and using proper punctuation helps ensure compliance.  

Thus, whether we use the dairy drivers, “Weird Al’s” YouTube videos, or now the Facebook apostrophe case, we have several fun sources to encourage discussion and create teaching moments on commas, apostrophes, and more.  

October 16, 2021 in Appellate Practice, Current Affairs, Legal Writing | Permalink | Comments (0)

Thursday, October 7, 2021

Communicating with Clients, Cultural Competency, and Rhetorical Listening

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.

Just yesterday, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 500, “Language Access in the Client-Lawyer Relationship.”  (Formal Opinions are the means by which the ABA offers its advice on how to interpret its Model Rules of Professional Conduct, the model upon which all fifty states ethics rules are based.)  In that Opinion, the Standing Committee took up the question of a lawyer’s duties when the lawyer and client do not share a common language.  The Standing Committee concluded that when a lawyer and a client do not share a common language or mode of communicating, there is room for misunderstanding that can impact the sufficiency of the lawyer-client communication and the competency of the representation.  In other words, if a client cannot understand what the lawyer is saying because of a language barrier or the lawyer cannot fully understand what the client is communicating, the lawyer’s ethical duties of competency and communication are at risk.

In these cases, the Standing Committee said, lawyers have a duty to get assistance from “qualified and impartial” interpreters or employ “assistive or language-translation devices” (such as closed captioning, live transcription, or speech recognition software) that enable the client to participate fully and intelligently in the representation and to ensure that the lawyer is competently gathering information to prepare the client’s case.  Lawyers would be wise to take a look at Formal Opinion 500 as it gives detailed advice on when a lawyer has a duty to employ the services of a translator, interpreter, or other assistive communication device. It also explains what to consider in determining if an interpreter is qualified. 

The most interesting part of the Formal Opinion, however, from a rhetorical perspective, comes at the end in the guidance about cultural competency.  In that section, the Standing Committee turns from a discussion on language and physical barriers to communication to the barriers created by social and cultural differences between lawyers and clients.  The Standing Committee suggests that language differences may indicate cultural differences that impact how lawyers and clients interpret their communications.   In other words, the “[t]he client may view the representation and the choices it entails through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer.”  As a result, the Committee said, the lawyer has a responsibility to develop cross-cultural competence that enables the lawyer to navigate and understand how clients give meaning communications based on the the whole context of their cultural, social, and lived experiences.  Ultimately, the Opinion concludes that effective communication between lawyers and clients exists only when “client[s] understand[] the relevant law and legal, institutional, and social contexts of the communication." In other words, lawyers are responsible not only for the words they choose but for ensuring that clients, from the vantage point of their experiences and perspectives, understand what those words mean.  That is, the Opinion establishes that lawyers have a duty to be culturally competent in their communication to ensure that meaning is not just conveyed but shared.

Having the responsibility to ensure that clients not only hear what the lawyer says but also know what those words mean—and conversely to ensure that the lawyer knows what the client’s words mean­—is a tall order. Thus, the Opinion offers helpful advice to lawyers on how to approach meaning-making in attorney-client communications when cultural differences exist:

  • Be aware of cultural differences;
  • Understand how they impact the representation;
  • Pay attention to how biases distort understanding;
  • Frame questions in multiple ways that might help the client in familiar contexts;
  • Explain the matter in multiple ways;
  • Give additional time in meetings for questions and clarifications; and
  • Learn more from both research and experts about how to accomplish mutual understanding.

These are all good pieces of advice, particularly for lawyers who are aware that they regularly work with clients who do not share the lawyer’s cultural expectations, understanding, or contexts.  Moreover, training in cultural competency and effective cross-cultural communication is something every lawyer should seek out to better serve clients. 

Not surprisingly, I suppose, I want to extend the Standing Committee’s discussion into the realm of rhetoric and ask what rhetorical skill might have to do with cultural competency.  Thus,  I’m going to suggest that effectively communicating across cultures is not just a type of cultural competency but instead is also a rhetorical competency—an ability in any given situation to understand the needs of the audience and to communicate effectively with them to create shared meaning.

One specific rhetorical competency that can help with the kind of cross-cultural communication that the Opinion suggests is an ethical duty is rhetorical listening.  Rhetorical scholar Krista Ratcliffe explored the concept of rhetorical listening in the context of her studies on composition, gender, and ethnicity. (See her book and her article on the topic.)  Ratcliffe defines rhetorical listening in her book as a “stance of openness that a person may choose to assume in relation to any person, text, or culture.”  It is a form of listening not for “mastery” but for “receptivity.”  For lawyers, the concept of rhetorical listening has application for thinking about how we might “turn one’s ear,” so to speak, toward the communication needs of clients who come from cultural backgrounds different from one’s own and might improve lawyers’ client interview skills.  What follows is my adaptation of Ratcliffe’s theory to lawyer cross-cultural communication as a rhetorical skill.

Often, when lawyers talk to clients, they are engaged in what Ratcliffe describes as listening for mastery.  I might call that kind of listening the lawyer’s typical “interrogative listening”—listening to extract from the client the information lawyers find legally relevant and filtering the client’s story through one’s own cultural and legal understandings.  When lawyers engage in this kind of listening, lawyers tend to give the words meaning through exclusively their own perspectives, perhaps with only a passing thought to whether the meanings drawn from the client’s words are the meanings shared by the client themselves.   

Conversely, when lawyers rhetorically listen to the client, they are not listening to interrogate the client and extract the story; instead they are listening to be receptive to the possibilities of meaning that might come with what they hear and to question how the client might understand the shared information through their own culture and experiences.  In addition, a lawyer engaged in rhetorical listening will be thinking about whether the messages the lawyer delivers to the client mean the same things to the client as they do to the lawyer.  Rhetorical listening, then, is a way lawyers can listen to clients to focus, as Ratcliffe says, simultaneously on “differences and  commonalities” across the potentially different cultures clients and lawyers occupy. In this way, lawyers’ rhetorical listening creates spaces for accomplishing the shared meaning that the Standing Committee’s Opinion demands.

One way to get one’s head around this somewhat nebulous idea of rhetorical listening, Ratcliffe suggests, is to invert the word “understanding” in the context of communication and think of it instead as “standing under” communication. “Standing under” means to let others’ messages “wash over, through, and around us” while acknowledging at the same time our own “particular and fluid standpoints” and how those might relate to each other.  This means that instead of hearing client messages as a set of building blocks that the lawyer sorts and stacks,  client messages are experienced as a waterfall--immersive, experiential, and exploratory.  I think Ratcliffe may be on to something here for lawyers--rarely, I think, do lawyers let client stories “wash over” them; instead, they seek to fit the client’s story into a particular legal framework with little room for negotiated meaning when cultures collide.  Rhetorical listening may be a game-changing addition to lawyers’ cross-cultural listening skills.

If lawyers are sorting and stacking the client’s story, they are likely narrowly focused on filtering that story through their own cultural understandings and meanings.  The client may not share those understandings, and this is the point the Standing Committee is making in its Opinion.  If lawyers ignore this potential cross-cultural gap in meaning-making, they stand to be less competent and effective.  As the Committee points out, “a lawyer must ensure that the client understands the legal significance of [the lawyer’s] communications and that the lawyer understands the client’s communication, bearing in mind the potential differences in cultural and social assumptions that might impact meaning.”

Ratcliffe’s rhetorical listening gives lawyers a space in which to approach this cross-cultural work, even as they begin to become more knowledgeable of cultural differences between themselves and their clients.  Ratcliffe gives lawyers a way to “listen for that which [they] do not intellectually, viscerally, or experientially know.”  As she suggests, lawyers must “first acknowledge[e] the existence” of different cultural understandings, they must listen for “unconscious presences, absences, and unknowns,” and they must “consciously integrat[e] this information into [their] worldviews and decision-making.”

What are your thoughts?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

October 7, 2021 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Tuesday, September 28, 2021

If the public’s opinion of the Supreme Court falls in the woods, does anyone hear it?

    Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.

    A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.

    Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.

    Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.

    Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.

    Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.

    Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.

September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Thursday, September 9, 2021

Thursday's Rhaw Bar: The Objectives and Means of Brief Writing:  Who Makes the Rhetorical Choices?  Does it Matter?

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

This semester, I’m teaching Professional Responsibility to about 145 second-year law students.  We are on the topic of how the ethics rules allocate decision-making between lawyers and clients.   The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules.  Model Rule 1.2 (a) and Comment 5 provide that

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.

Objectives, Means & The Appellate Brief

Applying this rule to appellate lawyers writing briefs seems straightforward.  When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor.  An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle.  But generally, the client’s objective is to win on appeal.)  Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs.   In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective.  If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.

So, we might conclude that content of the brief is almost always the means and not the objective of representation.  In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art.  (I wrote about this concept of rhetoric as productive art last month.)  If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide.  Maybe consultation is required under the ethical rule, but nothing more.  (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)

But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief?  Maybe, maybe not.   Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal.  Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.

Raising Issues on Appeal:  The Supreme Court’s View in Jones v. Barnes

In 1976, a New York state jury convicted David Barnes of robbery and assault.  Michael Melinger was assigned to represent Barnes on appeal.  From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal.  Barnes also enclosed his own pro se brief.

Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.

In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s.  But Melinger also filed with the appeals court Barnes’s pro se brief.  Melinger lost the appeal.

In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.

This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”

The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion.  Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow[] out weaker arguments on appeal and focus on  . . . at most a few key issues.”  A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal,  and the lawyer should be the one to choose which of the “few major points” should be raised.  The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that  . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”

In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.” 

In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.”  But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”

Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment.  At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly,  the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice.  Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.

Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff.  Brennan said:  “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.]  If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.

Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs

So, what then, do we have here? 

Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives.  The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible.  Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.

The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants:  constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so.  (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result.  The ethics, then, are perhaps not so clear.) For civil appellate lawyers,  on the other hand, the implications of Jones are indirect but interesting.  The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.

            Is brief writing a mean or an objective?

On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief.  It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives.  Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade. 

But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means.  One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation.  In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important.  Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen.  Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.

            Are legal issues created or identified?

Another question Jones raises is the nature of “issue identification” as a rhetorical  (i.e., persuasive) act.  That is, do lawyers create issues for argument or do they find them?  In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger.  But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.

But, on the other hand, even issue identification is a rhetorical act.  Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs.  Artistic proofs, Aristotle said, are created by the rhetor.  An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data.  So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)

            Which rhetorical choices are means? Which ones are objectives?

Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which?   For example, an appellate brief should have a theme.  If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean?  How about metaphors?  How about references to history or popular culture that help make a point?  All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client?  Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?

            Does the appellate lawyer’s professional expertise in legal rhetoric matter?

And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important?  Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer.  Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing.  If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases?  If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter?  And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.

Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law.  Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised.  And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair.  This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.

That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices.  In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.

What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

September 9, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, September 7, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part V - Point Heading, Summaries, and Transitions

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.

Do provide appropriate signposts:

  • Do consider using headings and summaries.
  • Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.

The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next

1.    Point headings make our writing better.

Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.

A.    Point headings are topic sentences.

Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.

B.    Point headings should be full sentences.

Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better

                1.    Strict Scrutiny.

                2.    The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.

The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.

C.    Point heading should look like sentences.

Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.

D.    Point headings are not just for the argument section.

Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:

               1.    In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.

The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.

E.    Point headings serve as a check on your analysis.

If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.

F.    Good point headings start with a good outline.

The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.

G.    You should include point headings in your Table of Contents.

Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:

Example 1:

TOC - Bad

Example 2:

TOC - Good

Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.

2.    Summaries make our writing better.

Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.

After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.

3.    Transitions make your writing easier to follow.

A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.

Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (1)