Monday, February 6, 2023
The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.
The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:
Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt.
Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand.
. . . .
Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.
Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:
Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.
First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.
Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.
Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.
Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).
I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).
Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:
The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.
Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."
I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).
Saturday, January 21, 2023
Happy 2023. I hope the new year is going well for all of you. As I began moving my students from objective office memos to the joy of appellate brief writing this month, I used a slide titled: “Read Everything.” My advice to students was to always read every part of the record, and then read all the relevant case law, and then read everything again. Thanks to a Northern District of Illinois December 30, 2022 Order in Outley v. City of Chicago, where then District Judge Gary Feinerman dismissed a discrimination case, publicly sanctioned plaintiff’s counsel, and referred counsel for possible discipline, I now have an extreme example of what happens when counsel does not read court documents, among other things. You can read the order here: Dec. 30 opinion.
First reported by Law360, the order in Outley made news for what now-retired Judge Feinerman called “the poorest performance by an attorney that the undersigned has seen during his 12-plus years on the bench.” Order at 2; see Andrew Strickler, “Poorest” Atty Performance Triggers Ethics Referral (Jan. 3, 2023), https://www.law360.com/pulse/articles/1561714/-poorest-atty-performance-triggers-ethics-referral. In a forty-one page order, the court carefully detailed plaintiff’s counsel’s many transgressions, including what the court characterized as extensive efforts to continue trial, repeated “intemperate” statements to the court like complaints of “get[ting] ripped a new butthole,” and interestingly, a long record of prior sanctions for the same type of antics in state and federal cases in Illinois. See Order at 3-20, 39-41.
Judge Feinerman’s order covers many instances of what he found to be attorney misconduct, which “went beyond clumsy lawyering.” Order at 33. As the order explains, plaintiff, by himself and through counsel, tried to file motions long after deadlines, made the “series of intemperate remarks” during pretrial proceedings and in motions, repeatedly violated the court’s orders in opening statement to the jury, and testified on direct examination to matters excluded by the court and claims dismissed. Order at 3-20, 39-41.
As examples of various misconduct, the court explained: “On August 31—four weeks after the extended motion in limine” deadline “and over four weeks after [plaintiff’s counsel] told Defendants’ counsel that Outley would not be filing motions in limine”—Outley “moved for leave to file instanter twenty motions in limine.” Order at 3. Moreover, “[c]orrespondence between opposing counsel as well as [plaintiff’s attorney’s] own statements make clear that [plaintiff’s attorney] knowingly and intentionally abandoned the parties’ plan to collaborate on a final pretrial order,” showing counsel’s “abdication of her responsibilities as counsel.” Order at 3-4.
For this piece, I want to highlight the impact of counsel’s admitted failure to read the court’s order on motions in limine and the defendants’ declarations. See generally Debra Cassens Weiss, Lawyer “turned in the poorest performance” he has seen in 12 years on bench, former federal judge says, ABA Journal (Jan. 5, 2023), https://www.abajournal.com/web/article/federal-judge-says-lawyer-turned-in-the-poorest-performance-he-has-seen-on-12-years-on-bench (providing a complete discussion of all key parts of the district court’s order). In response to defendants’ motions to exclude some of plaintiff’s evidence, the court “issued an order on Defendants’ motions in limine on September 16,” which “granted in part and denied in part those motions.” Order at 9. Although “Outley attached the court’s September 16 order to the emergency injunction motion he filed on September 22” and other motions, “Outley’s September 22 motions revealed that [plaintiff’s counsel] had not read the court’s September 16 in limine order.” Order at 10. In pretrial and trial proceedings, plaintiff’s counsel regularly acted as if the court had granted all of defendants’ exclusion requests “in block.” Order at 10.
In the September 22 motions, Outley claimed:
Honorable Judge Feinerman did not explain why he never took Mr. Outley’s timely Response to Defendants’ MILs [in limine motions] under consideration. He ruled straight for the granting of Defendants’ MILs., in block, without ever mentioning Mr. Outley’s Response. . . . [T]he Court never translated its thinking [on Defendants’ Motion in limine No. 13] into a ruling, instead with one swift move the Court later issued a ruling granting Defendants’ MILs in block effectively overruling its prior thinking.
But, “[a]s the September 16 in limine order made perfectly clear, the court acknowledged and considered Outley’s timely response to Defendants’ motions in limine, and it did not grant Defendants’ motions in limine ’in block.’” Order at 10.
Additionally, counsel made no timely objection to arguably late declarations filed by the defense, admitting she received them on September 13, 15, and 22, but did not read any of them before September 22, despite a September 23 trial date. Order at 11-12. Once trial began, on September 23, “the court warned” plaintiff’s attorney “at a sidebar that she was ‘going beyond what this case is about,’” and only “[a]t that time,” did counsel “claim that she had not yet seen the court’s September 16 in limine order . . .—this despite her having attached the order to a motion she filed the previous day.” Order at 12.
Perhaps this admitted failure to read led counsel to “repeatedly transgress the bounds of appropriate zealous advocacy in addressing the court,” see Order at 36, including through a
motion for declaratory relief against the judge and a judicial notice motion, both based in part on an assumption the court had granted the in limine motions in full, see Order at 5-6, 24. On the record in court and in filings, counsel often complained her client received unfair treatment, making comments like: “[I]t would be unwise for the court to try to get along with the defendants and one more time, as it has become the norm in this litigation unfortunately, grant their wishes.” Order at 6. The district court found these comments and motions were “to circumvent the court’s pretrial rulings without waiting to pursue an appeal” and to delay trial, all based in part on failure to read. Order at 5-6, 24.
Despite her allegations like, “a judge can set a court case for a ruling and not be ready and kick it another two months, and that’s just fine; but if a—if a counsel needs a couple of extra weeks, it’s—they get ripped a new butthole, and their case is very close to dismissed,” in the end, counsel admitted she was simply not ready for trial. Order at 3, 4-5. In her own words, “I fought so hard to get the trial continued because I’m just physically, mentally, emotionally not up to it.” Order at 3. The court concluded: “Those words, spoken by [plaintiff’s counsel] the day before [causing] the mistrial, were completely on point.” Id.
As the court summarized: “It would be a substantial understatement to say that things did not go smoothly.” Order at 2. Had counsel read the court’s in limine ruling, perhaps she could have given her client--who the court noted had “a winnable case” depending on who the jury believed--his day in court. See Order at 5.
The ABA Journal contacted Outley’s counsel, but she “did not immediately respond” to a voicemail message or an email. Cassens Weiss, supra.
Here’s to careful reading in 2023.
Friday, January 20, 2023
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey. The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press
In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks.
The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.
Appellate Court Opinions and News
The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.
The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.
Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:
What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?
Saturday, January 14, 2023
One of the criticisms of law schools is that they do not adequately prepare students for law practice.
In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills. This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.
Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.
1. Learning to work with other people – including those you don’t like – is critical to your success.
In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession. They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.
And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.
2. Confidence and humility are critical to developing strong relationships with your colleagues.
Confidence matters in the legal profession.
But humility matters too.
Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.
In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.
3. Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.
Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.
Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person. As stated above, nobody likes jerks.
4. Excellent persuasive writing skills are essential.
If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills. Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.
5. Outstanding communication skills are critically important.
Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.
Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.
6. Law practice is stressful and can be all-consuming.
The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.
But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity. Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.
 See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)
Friday, January 13, 2023
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
U.S. Supreme Court News:
- The Court has yet to release any opinions from cases argued this term. Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
- The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations. The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law. The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect. The order is HERE.
- Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest. More can be found HERE.
- A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week. You can review the summary HERE.
Federal Appellate Court News:
- The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges. More can be found HERE.
- A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution. The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution. More can be found HERE.
State Appellate Court News:
- The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico. Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing. More can be found HERE.
Appellate Practice Tips:
- Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today. The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC. The article can be found HERE.
- The Illinois Appellate Court, Third District, is hiring an appellate court law clerk. Details can be found HERE.
Friday, January 6, 2023
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
Happy New Year from The Weekly Roundup!
US Supreme Court Opinions and News
- Justice Roberts’s 2022 Year-End Report on the Federal Judiciary was released on December 31, 2022. Find reviews and analysis of the report from The New York Times, The Washington Post, The Associated Press, Reuters, and Bloomberg.
- In December, the Supreme Court announced that this year it will resume the tradition of announcing opinions from the bench. The practice has been suspended since the beginning of the pandemic. The last opinion delivered from the bench was Kansas v. Garcia, delivered March 3, 2020. Opinion announcements will not be livestreamed but will be recorded and available at the National Archives at the beginning of the next Term, which was the pre-pandemic tradition. See reports from The New York Times, CNN, SCOTUSBlog, and Bloomberg Law.
- This week, the Biden Administration filed a response in the case challenging its student loan forgiveness plan. The Court will hear two challenges: one by states arguing that the plan will harm companies that service the loans and the other by individuals arguing that the plan will harm them because they are excluded from the plan. The administration’s response argues that the challenging parties have failed to show the requisite harm to establish standing and that the administration is within its authority to implement the plan. Late last year, the Court issued an injunction blocking the administration from implementing the plan to forgive up to $20,000 per borrower. Oral argument is set for February 28, 2023. See reports from CNBC and The New York Times.
- The Court ruled that Title 42, the pandemic-era restrictions on migration along the southern border, must stay in effect pending a ruling. The decision overturns a lower court decision to remove a stay issued against the Biden administration’s attempt to lift Title 42 restrictions. The Court is set to hear argument only on the question of whether the 19 states could pursue their challenges. See reports from The New York Times and The Wall Street Journal.
- The Supreme Court is set to become the subject of a new primetime legal drama. See descriptions and discussion of the new ABC pilot, “Judgement,” from The Hollywood Reporter, Variety, and Deadline.
Appellate Court Opinions and News
- The Ninth Circuit ruled that wearing a MAGA hat is free speech. The plaintiff claimed that a school principle violated his first amendment rights by disciplining him for wearing the hat at a teacher-only training session. The court determined that wearing the hat had not caused actual disruption and that evidence that some faculty members were offended was not sufficient justification to infringe the plaintiff’s rights. The court ruled, however, that the plaintiff could not sue the school district for dismissing the harassment complaint. See the ruling and reports from Reuters and CBS News.
- The Eleventh Circuit upheld a Florida school board’s transgender bathroom policy that segregates bathrooms by sex. A transgender student challenged the policy because it discriminates against transgender students. The court ruled that the policy survives constitutional review because it has the legitimate objective of protecting students’ privacy and shielding their developing bodies from the opposite sex. The dissent recognizes that “[t]he bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.” See the ruling and reports from Reuters and Bloomberg Law.
State Court Opinions and News
- The Oregon Supreme Court has ruled that the ban on non-unanimous jury verdicts applies retroactively to all convictions in Oregon. The April 2020 Supreme Court case, Ramos v. Louisiana, outlawed convictions based on divided verdicts but the Court declined to apply the ban retroactively, leaving that decision to the states. (See The Weekly Roundup’s coverage here and here.) With the Oregon ruling, hundreds of Oregon felony convictions became invalid. The Oregon court recognized that the policy of allowing non-unanimous verdicts was intended to minimize the voice of non-white jurors and that it “caused great harm to people of color” and “undermined the fundamental Sixth Amendment rights of all Oregonians.” See the ruling and a report from The Oregonian.
This week, a couple of state courts have contributed to the still developing national abortion landscape:
- The South Carolina Supreme Court struck SC’s 6-week abortion ban on state constitutional grounds, finding the that the “state constitutional right to privacy extends to a woman’s decision to have an abortion” and that the 6-week ban was an unreasonable invasion of privacy. See the ruling and reports from CNBC and The New York Times.
- Meanwhile, in Idaho, the state supreme court upheld Idaho’s near total abortion ban, finding that the Idaho constitution did not include a right to the procedure. Idaho has three abortion bans, one of which bans abortion from conception. See the ruling and reports from The New York Times and Politico.
Other Appellate News
- The Eleventh Circuit has held that “and” means “and” not “or” in an analysis of the First Step Act, a law giving offenders a “safety valve” that allowed them to escape certain mandatory minimum sentences. The “safety valve” applies only if certain conditions are met. The list of conditions is connected with the word “and,” which generally means that all conditions must be met. This interpretation significantly limits when an offender would be excluded from enjoying the “safety valve.” However, Florida prosecutors argued that, in this case, “and” meant “or.” The Eleventh Circuit disagreed, applying the common definition of “and.” For those of us who enjoy statutory interpretation and language analysis, the ruling is worth a read. See also reports from Georgia Public Broadcasting and The Atlanta Journal-Constitution.
Saturday, December 17, 2022
2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus
Happy December! Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022. Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.
For example: “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.” Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022). “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.” See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term).
Other neat new terms include “False Narrative” and “Nuclear Option.” “False narrative” is a noun, according to Burton’s, and unsurprisingly means: “a contrived story, artifice,” and “distortion of truth.” Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.” In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’” Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).
Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including: “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.” Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022). Cassens Weiss also explained: “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms.
In its pitch for Burton’s Sixth Edition, LexisNexis explains: “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’” Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.
Friday, December 16, 2022
The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.
1. Use the Socratic Method.
Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.
The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.
Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.
Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.
2. Expand the legal writing curriculum.
Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.
But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.
In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.
More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.
3. Require students to enroll in at least two clinics.
Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.
Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.
For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).
4. Require students to take multiple upper-level practical skills courses.
Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.
The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.
After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.
5. Use “high-pressure” assignments.
The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”
For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.
6. Focus on developing the intangibles, or soft skills.
A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.
For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.
Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.
7. Focus on mindset development – and mental toughness.
In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.
But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.
Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.
8. Have high standards.
It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.
9. Teach students to respect diverse viewpoints.
Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.
For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.
After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.
Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.
Saturday, November 19, 2022
Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s Pasadena courthouse. One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses. She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit. During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution. See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).
Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.” October 23, 2022 Press Release. The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system. The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area. Id.
As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation. She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.” Id.
Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law. She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.” Id. Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today. See id.
As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless. The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument. However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so.
November 19, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Arbitration, Federal Appeals Courts, Legal Writing, State Appeals Courts | Permalink | Comments (0)
Sunday, November 13, 2022
Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.
In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.
The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.
The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.
The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.
The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.
Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.
Saturday, September 24, 2022
Most appellate practitioners understand the necessary evil of citations, and some of us even enjoy parts of The Bluebook. On the other hand, I have concerns about Bluebook cost, frequent Bluebook revisions seemingly for the sake of revising, and allegations of law review happy hours funded by Bluebook sales. See, e.g., Richard A. Posner, The Bluebook Blues, 120 Yale L. J. 850, 851 (2011); Bryan Garner, The Bluebook's 20th Edition Prompts Many Musings From Bryan Garner, ABA Journal (Aug. 1 2015); https://taxprof.typepad.com/taxprof_blog/2022/06/harvard-led-citation-cartel-rakes-in-millions-from-bluebook-manual-monopoly-masks-profits.html.
As I’ve mentioned in the past, California, Florida, and some other states have their own style manuals and do not follow The Bluebook. Additional states have their own gloss on key Bluebook rules or allow use of other manuals. Rule 28 of the Alabama Rules of Appellate Procedure, for example, tells counsel to use The Association of Legal Writing Directors Citation Manual: A Professional System of Citation (the ALWD Guide), The Bluebook, or otherwise follow the citation style of the Alabama Supreme Court.
Happily, those of us in Bluebook jurisdictions have a wonderful alternative, now in its second edition. The completely free, open source The Indigo Book, which one commentator described as “compatible with The Bluebook [but including] easier-to-use guides,” now has a second edition. See generally Wendy S. Loquasto, Legal Citation: Which Guide Should You Use and What Is the Difference?, 91 Fla. Bar J. 39, 42 (2017).
Here is the final second edition of The Indigo Book, which parallels the twenty-first edition of The Bluebook: https://indigobook.github.io/versions/indigobook-2.0.html. Many thanks to Prof. Jennifer Romig of Emory University School of Law, and others, for this resource. In sharing the second edition, Prof. Romig explained: “The Indigo Book is a free, open-access citation manual. It is consistent with well-accepted citation practices.” The new version also “includes enhanced and expanded state-by-state "Local Notes" in Table T3 at the back,” along with “commentary and critique” in “Indigo Inkling” boxes. Prof. Romig thanked many in our legal writing community who helped her create this wonderful resource, especially David Ziff, and noted “Alexa Chew's work is cited twice.”
The original Indigo Book was a light-hearted, yet serious resource, which raised important questions about monopoly, ethics, and bias. Prof. Romig promised, “in general the [second edition] attempts to engage with ongoing conversations about citation ethics and practice, while staying true to its main function as a rule-based manual with examples.” In my opinion, the second edition of The Indigo Book succeeds in these missions, and I urge you to share this resource with students and practitioners.
Sunday, September 18, 2022
Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.
Today, however, one day after the Constitution’s 235th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.” Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.
The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.
The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved. As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”
Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.
Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”
Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.” Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”
The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time. The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.
Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The lack of candor in this brief may violate the Rule.
Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org., the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.” Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen, “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”
Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts. Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.
If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.
More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.
 Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
 Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.
 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).
 Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).
 Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).
 Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).
 Model R. of Prof. Conduct 3.3.
 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
 History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).
 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
 Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.
 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).
Saturday, September 10, 2022
Reply briefs give litigants an opportunity to refute an adversary’s arguments and enhance the persuasiveness of their position. Below are several tips on how to maximize the effectiveness of a reply brief.
1. Begin with a concise and powerful introduction.
Your reply brief should begin with a short but powerful introduction that: (a) provides a brief overview of the case; (b) includes a roadmap of your arguments; and (c) refutes the arguments made in your adversary’s brief. One way to do this is by using the Rule of Three, namely, identifying three specific flaws in your adversary’s arguments and explaining why they lack merit.
After all, you can be fairly confident that, after reading your adversary’s brief, the court will have questions or concerns about some of the points that you made in your initial brief. Anticipating those concerns and responding briefly but effectively to them in the introduction will enhance the quality and persuasiveness of your brief.
2. Focus on what your adversary did not say.
Often, what your adversary did not say is equally, if not more, important than what your adversary did say. For example, your adversary may fail to address unfavorable precedent or fail to acknowledge unfavorable facts. Be sure to expose these omissions in your reply brief, as doing so will undermine your adversary’s credibility and strengthen the persuasiveness of your argument.
3. Respond to some of your adversary’s arguments.
The purpose of a reply brief is to respond to your adversary’s arguments, not to repeat your arguments. In so doing, however, you do not need to respond to all of your adversary’s arguments. If your adversary includes weak or irrelevant arguments, you need not – and should not – respond because it will give undue credibility to those arguments. Instead, respond only to arguments that have at least some merit and that the court is likely to consider when deciding your case. Likewise, do not point out minor or inconsequential errors that will have no bearing on the outcome of your case.
Of course, in responding to your adversary’s arguments, make sure that you maintain your credibility. For example, never misstate your adversary’s arguments. Acknowledge unfavorable facts and law. Never overstate the value of precedent. If you make one of these mistakes, you will undermine your credibility and your likelihood of success.
4. Do not repeat the arguments that you made in your initial brief – but briefly remind the court of those arguments.
The worst thing that you can do in a reply brief is to repeat the arguments you made in your initial brief. Doing so will add no value to your position and will fail to respond to your adversary’s arguments, which is the purpose of a reply brief. Indeed, merely repeating your arguments will affect your credibility with the court, which will affect your likelihood of success.
Importantly, however, you should briefly remind the court of the arguments that you made in your initial brief and of the relief that you are seeking, which can be done at the end of your introduction or legal argument. The reason for doing so is that the reply brief may be the first document that the judge reads in your case.
5. Write your reply brief with the expectation that it may be the first document that the judge reads in your case.
Some judges and law clerks will begin reviewing your case by reading the reply brief first. Accordingly, your reply brief should include the facts and precedent necessary to understand the relevant legal issues. This does not mean, of course, that you should regurgitate every fact and case from your initial brief; rather, you should dedicate a portion in the introduction to framing the legal issues, telling the court what you want (i.e., the remedy you are seeking) and explaining briefly why you should win. The remainder should be devoted to refuting your adversary's arguments.
6. Maintain consistency with your initial brief.
Make sure that you represent the facts and law precisely as you did in your initial brief. In many instances, for example, you may paraphrase or summarize some of the facts or arguments that you made in the initial brief. In so doing, be careful not to say anything that could be construed as inconsistent with (or overstating) what you wrote in the initial brief. Simply put, be honest and candid with the court because your credibility matters as much, if not more, than the validity of your arguments.
7. Keep it short and re-enforce your theme.
Your reply brief should be both concise and comprehensive, in which you refute your adversary’s arguments, highlight the most favorable facts and law, and re-enforce the theme of your case. An overly lengthy reply brief may lend unnecessary credibility to your adversary’s arguments or suggest that you lack confidence in your arguments. As such, keep it short, tight, and to the point.
8. End strong.
A reply brief gives you the last word. Make it count. For example, if you could state in one sentence why you should win, what would you say? If you knew that the court would only remember what you said at the end of your reply brief, what would you say? Think about that and make sure to draft a powerful ending to your brief.
Sunday, September 4, 2022
Last week, I responded to a noticeably short opening brief in an interlocutory appeal that sought to make the issue a simple one. That brief mustered little authority and asserted a purely legal question reflected in the relevant law’s text. In framing the issue, the brief stated it neutrally as though the brief would provide a learned disquisition that would enable the court to answer the question, rather than advocacy of a particular result. Of course, the body of the brief pushed a singular point of view. The question presented, then, did not contribute to the advocacy.
Usually, advocates lose an opportunity when the issue presented does not itself suggest an obvious answer. Judges normally read the issue presented as the first clue about what the case concerns. My brief began with a “restatement” of the issue presented, which emphasized whether the issue merited an answer because of an underlying dispute about the facts. A court does not answer a pure legal question when the answer is merely advisory. The case concerned an immunity for one of two bases for liability. If the other party lacked eligibility for the immunity, as we contended, then the court, under its precedents, lacked jurisdiction to answer the question and should, as it had done in the past, dismiss the appeal as improvidently granted.
In restating the question to pose the problem that a central factual dispute still existed, I led the court into the first section of my brief, where I quoted the court’s own observation that “too often” courts grant review of a pure legal question only to discover upon briefing and argument that facts must first be established before the question becomes ripe. More substantive sections of the brief also worked in the unanswered question of eligibility as confounding to deeper questions about the statute as a whole and limits on the constitutional authority to promulgate the immunity.
In restating the question as I did, I followed the age-old advice voiced again by Justice Scalia and Bryan Garner in Making Your Case: The Art of Persuading Judges: “A well-framed issue statement suggests the outcome you desire.” They follow that statement with an example of the Court’s framing of the issue in Eisenstadt v. Baird, the once-again controversial case of whether Connecticut could prohibit the sale of contraceptives to unmarried people.
The authors note that Judge Posner thought the Court might have struggled more with an answer if the question presented were stated as:
We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly.
Instead, the Court presented the issue as:
If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Both versions of the question presented suggests an answer. Still, there is a cognizable difference between them that advocates should recognize. The first version, drafted by Judge Posner, makes an appeal to an ideological predisposition by its language that may alienate some judges. A more effective formulation would present the same question in more neutral and less inflammatory terms, as the Court’s decision did. As Scalia and Garner remind us, “you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable.”
 Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).
 Richard A. Posner, Law and Literature: A Misunderstood Relation 305 (1988) (quoted in Scalia and Garner, supra note one, at 84).
 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
 Scalia and Garner, supra note 1, at 84-85.
Saturday, August 27, 2022
The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.
1. They are highly intelligent and analytical.
The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.
2. They have the intangibles.
The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.
3. They are objective in assessing the merits of an appeal.
The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.
4. They know how to select issues for an appeal.
The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.
5. They are exceptional writers.
The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.
6. They are outstanding oral advocates.
The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.
7. They are extremely thorough and methodical.
The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.
8. They are confident.
The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.
9. They win.
As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.
In the most recent ABA Journal, Chris Arledge discusses how well storytelling can assist in many aspects of trial practice. See Making Your Case: Storytelling Problems and Solutions, 104 ABA Journal 16-17 (Aug./Sept. 2022). Arledge’s interesting article on applying the craft of “other professional storytellers—like novelists, journalists, advertisers and filmmakers” to trial practice reminded me just how much our job as appellate advocates is storytelling. See id.
In the appellate and academic worlds, we have many great books and even conferences on using storytelling to represent our clients. See, e.g., LWI’s co-sponsored Applied Legal Storytelling Conference, https://www.lwionline.org/conferences/eighth-applied-legal-storytelling-conference. If you are just starting to incorporate storytelling into your writing, I recommend consulting these resources. In addition, I can share some tips that are popular with my writing students to hone your organization by using key tenants of storytelling to connect all parts of your briefs.
First, make sure you take the time to write out a specific theory of the case. Using storytelling well, either in objective inter-office memos or persuasive external writing, requires a writer to truly understand the theory of the case. Often, my students with large scale organization issues struggle to state their theories of the case. Integrating one theory from an introductory “hook” through a compelling Statement of the Case and to a cogent Discussion requires consistent use of the same girding theory.
Second, distill your points into an “elevator story,” not just to persuade, but to explain the problem and give your suggested solution using storytelling. Lately, I have asked students to create an elevator story of a one-minute oral summary of their Discussion or Argument sections. I explain I am not just asking for a persuasive “pitch,” but want a true summary of their points. If they cannot do the story in one minute or less, I suggest they go back to their outlines, look for an overarching idea they can use as the theory of the case, and then apply that theory to all parts of their papers. Once writers have a strong theory of the case, they can much more easily use ideas of character and climax from storytelling.
As appellate writers, our job is to tell the story of what went well, or poorly, at trial, and to show how our suggested result will give our story the desired result. Stressing your theory of the case as the connection between all parts of your writing will help you employ storytelling more deftly to reach that happy ending.
Thursday, August 4, 2022
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.
Putting the Audience First: The Writing Tactic of Restatement
In May, I wrote the post, Putting the Audience First: A Perspective on Legal Writing. In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document. (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.) In that post, I promised that June’s post would be about the tactics of an audience-first perspective. Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness. So, with apologies, here’s the post I promised for June.
Audience-First Perspective, Effective Writing Choices
In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them. An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document. As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs. Ultimately, writers that meet audience needs are more likely to influence those audiences. Accordingly, I suggested that the legal writer’s prime directive is this:
In a deliberate way and in every writing choice, put the audience first.
This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs. One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.
Restatement as a Tactic of Audience-First Writing
Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both. Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can
- Emphasize important ideas;
- Enable the audience to more easily remember important ideas;
- Clarify concepts that might be confusing to the audience; and
- Add a gloss on concepts or ideas that convey emotion or theme to the audience.
Signposts should accompany restatements. Good signposts for restated information include
- In other words
- That is
- Stated another way.
Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)
Examples of Restatement from Appellate Briefs
Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission. The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.” Pay particular attention to what happens in the second sentence below:
Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.
This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool. The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution. In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex.
So, why would a brief include a complicated quote? One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers. That might explain the quote in this brief. Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia. Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.
The brief keeps the original ideas in Wilson’s mouth, so to speak. But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means. In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:
Each branch, in other words, must ensure that the others stay in their constitutional lanes.
By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement. Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do. This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.
There’s also an emotional valence to the restatement—this is the gloss. The metaphor of staying in one’s lane gives a modern vibe to an old idea. Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.
Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done. This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise. As such, the restatement provides less complex and more memorable language that has an emotional “feel.”
Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences. Imagine the news headline that emphasizes the restatement: Case asks whether branches must help others “stay in constitutional lanes.” In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.
Here’s another example that presents a similar pattern of restatement. This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.
Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks. In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work. The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too. In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information. But the brief does not allow that confusion to persist. By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit:
In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.
Is there anything special about the “marketplace of ideas” as an element of restatement here? Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911. A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse. For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.
Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience. Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept. In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here. The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.
Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences. Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts.
What do you think about restatement?
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 did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at email@example.com.
Saturday, July 30, 2022
Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.
1. Start strong and get to the point quickly.
Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:
- Tells the court in one sentence why you should win.
- States clearly what remedy you are seeking.
- Explains why the court should rule in your favor.
- Presents the strongest facts and legal authority that support your argument.
Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor.
2. Focus on the facts.
In most instances, the facts – not the law -- win cases.
An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.
To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.
As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.
3. Adopt a more objective tone.
Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:
- Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
- Explains how a ruling in your favor will affect future cases and litigants.
- Considers the policy implications of a ruling in your favor.
- Addresses institutional considerations, such as how the public might react to a ruling in your favor.
- Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.
Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.
4. Break the rules – sometimes.
When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.
Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:
- Captures the reader’s attention from the beginning.
- Emphasizes the most favorable facts and law immediately and throughout the brief.
- Appeals to emotion where appropriate.
- Exposes the logical flaws in your adversary’s argument.
- Uses metaphors or other literary devices to enhance persuasion.
- Ends powerfully.
Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:
During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.” Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.
This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.
5. Perception is reality – do not make mistakes that undermine your credibility.
Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:
- Spelling errors
- Long sentences (i.e., over twenty-five words)
- Excessively long paragraphs (e.g., one paragraph occupying an entire page)
- Failure to comply with the local court rules
- Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
- Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
- Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
- Avoiding unfavorable facts or law
- Requesting relief that the court is not empowered to grant
- Including irrelevant facts or law in your brief (and including unnecessary string cites)
Avoid making these and other mistakes at all costs.
6. The law will only get you so far; convince the court that it is doing the right thing by ruling for you.
Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.
Sunday, July 24, 2022
Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.
In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.
Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.
A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.
In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.
The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.
[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).
Saturday, July 23, 2022
Many of my students believe I “prohibit” any use of passive voice. I certainly discourage passive voice, especially in objective writing. As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity. As Bryan Garner explained in his 2019 Michigan Bar Journal piece: “Stylists agree” passive voice is “generally weaker than active voice. It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.” Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34 (Dec. 2019).
However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.” Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).” Id. at 34.
As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice. Garner asks us to count the passive voice examples in this passage:
In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.
Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.” Id. at 35. Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.
I especially like Garner’s explanation: “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).” Id. Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.” Id.
This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point: “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).” Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.” Id.
Returning to the challenge passage, Garner says there are six passives: “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.” Id. Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together. Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.” Id.
Finally, I would ask students to re-write this passage, with the most direct language possible. Students, and lawyers, can then compare their revisions to Garner’s:
In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.
Id. Garner removed what he calls “zombie nouns” along with passive voice, and made the “reader’s job” much easier. Id. Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.