Appellate Advocacy Blog

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

Thursday, November 8, 2018

Thinking Thursdays: Dethroning the Hierarchy of Authority

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

The hierarchy of authority – the ranking of legal authorities within binding/persuasive and primary/secondary categories – is a component of basic lawyering 101. Professor Amy J. Griffin, in her forthcoming article Dethroning the Hierarchy of Authority, however, argues that the conventional view of legal authority as a “hierarchy” is simplistic and fails to adequately capture the complex ways that practitioners and judges select and rely on authority.

Professor Griffin argues that the traditional categorization of legal authority into binary categories that are static is “significantly flawed, and seriously incongruent” with the use of authority in practice. In particular, Professor Griffin focuses on lawyers’ use of persuasive authority – which she calls “optional authority.” This category of authority has drastically expanded in recent years because the internet has made both legal and non-legal information easily accessible.  This accessibility has led lawyers and judges to increasingly cite types of information previously unseen in briefs and judicial opinions – information ranging from social science authorities and empirical studies to tweets.  Professor Griffin observes that despite this explosion in availability of possible optional authorities to cite, the current hierarchy of authority “offers no means of differentiating between sources as disparate as empirical social science studies and legislative history.” The article warns that without a model governing the appropriateness and authoritativeness of such sources, “the only guard against bias seems to be the adversarial design of the judicial system.”

Although commentators have previously offered suggestions regarding how lawyers should choose which optional authorities to cite in support of their arguments, Professor Griffin states that “no comprehensive view” has been articulated and argues that “we must resist the appeal of a neat objective ranking.” Instead, she proposes a “shift to a holistic, pluralistic view of legal authority.” This pluralist scheme would permit scholars to develop a theory to explain the use of optional authority and would give lawyers a better predictive model of authority. A key role of lawyers is to predict legal outcomes for clients. If lawyers do not have a theory to explain why judges choose to rely on certain optional authorities over others, then making those predictions becomes significantly more difficult. Although Professor Griffin does not offer a scheme, her article raises interesting and important questions about the weight of authority in a world where lawyers now face more choices of authority than ever. Professor Griffin concludes that “[w]e need a wider lens and more flexible framework” that permits a deeper exploration and understanding of the complexities of the weight of authority.

November 8, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, October 25, 2018

Thinking Thursdays: Understanding the Value of Voices Briefs in Appellate Practice

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Supreme Court decisions on deeply personal constitutional issues affect far more than the parties themselves. For example, consider the far-reaching effects of the Court’s decision on marriage equality in Obergefell v. Hodges, or on reproductive rights in Whole Woman’s Health v. Hellerstedt. Voices briefs—a form of amicus brief—give non-parties an opportunity to be heard by telling the stories of individuals who are strangers to the case but “whose lives will be profoundly shaped by the Court’s decisions.”

Amicus filings have increased by “an astounding 800%” in the last fifty years. And the filing of voices briefs has also dramatically increased, especially over the last three years. In Professor Linda Edwards’s article, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, she considers the legitimacy and value of voices briefs and concludes that “there is little to lose and much to gain when amicus filers tell their stories.”

To date, voices briefs have been used almost exclusively in abortion rights and marriage equality cases. In these cases, “(1) the outcome will have a direct personal impact on the intimate lives of those affected; and (2) the storytellers’ experience is likely outside the Justices’ experience.” Professor Edwards imagines other types of cases with similar characteristics in which advocates might use nonparty stories to help the Court understand the experiences of others. For example, voices briefs could be useful in cases involving immigration, capital defendants, convicted felons, police shootings, and issues of race, class, or power disparity.

Professor Edwards explains that voices briefs serve at least three important roles. First, they allow nonparties who will be intimately affected by the Court’s decision an opportunity to be heard. Second, even if voices briefs don’t succeed in changing the outcome of the case, they may succeed in encouraging the Court to write an opinion that both recognizes and respects opposing views. And, third, voices briefs may encourage the Court to write opinions that model “better public discourse in today’s polarized public square.” As a result, the Court’s opinions may “provide a modicum of healing because readers who lose at least will feel heard, and readers who win may come away with a greater understanding of those on the other side of the issue.”

Professor Edwards analyzes the persuasive potential of voices briefs using cognitive science research focusing on “schemas.” Schemas are “preexisting cognitive patterns providing interpretive frameworks through which we perceive and judge the world.” The perceptions that result from these schemas seem to be natural and objectively true,” as “[t]he schema both highlights information that seems consistent with the schema, and hides inconsistent information.” So, the question is not whether Justices “see the situation through a lens, but which lens focuses [their] view.” And because schemas are unconscious, Justices may “remain unconsciously captive to a set of unexamined assumptions based on preexisting narrative schema.”

Voices briefs seek to challenge the Justices’ preexisting cultural narratives by highlighting voices and stories that don’t fit neatly into their schemas. In our increasingly polarized country, the human tendency to “associate primarily with and listen primarily to those we perceive to be like us” has become amplified. Justices are not immune from this tendency. Indeed, as Professor Edwards notes, Justices have always relied on extra-judicial factual sources and their own preexisting cultural knowledge and personal experiences to inform their decision-making.

Voices briefs thus serve an important role—they help counteract the Justices’ preexisting cultural narratives by exposing them to diverse perspectives that “help to fill the inevitable gap between a Justice’s personal experience and the realities of other lives and perspectives.” Studies have shown that anecdotal messages like the ones communicated in voices briefs may actually be more effective at countering negative preexisting bias than the logical arguments in merits briefs. Professor Edwards concludes that, instead of adding bias to a neutral process, “voices briefs may be the only way to counter the preexisting values bias that accompanies human deliberation.”

Professor Edwards discusses concerns about reliability, relevance, and the risk that non-party stories will be used impermissibly as adjudicative facts, rather than as permissible legislative facts. Professor Edwards concludes that “preserving a role for voices briefs is preferable to limiting their use in ways that ignore modern cognitive science and ancient rhetorical principles, that silence the voices of the governed, or that secretly smuggle in the adoption of a limiting jurisprudential view.”

I encourage appellate practitioners to read Professor Edwards’s article and to think about ways in which you might incorporate voices briefs into your appellate practice when faced with deeply personal constitutional issues that may be out of the realm of the Justices’ own personal experiences.

Special thanks to Alison Doyle for her help with this blog post.

October 25, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, Sports, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 24, 2018

Seventh Circuit Benchslap II: Word Count Edition

So this one was more of a Judge-Easterbrook-wastes-no-teachable-moment moment than a true bench slap of the sort that Tessa discussed this week. But still.

Appellate practitioners in my region know well that the Seventh Circuit is a stickler on all-things-brief. It's not so much that its rules are demanding; Circuit Rule 32, for example, actually imposes looser formatting and word-count rules than the FRAP defaults. But the circuit strictly enforces its rules. And it is quite opinionated about things that keep one's brief from being a miserable slog to read. Like clean, modern typography. Section XIII of its Practitioner's Handbook for Appeals (pdf) offers an excellent set of suggestions for making briefs more readable. The Handbook reflects a lot of knowledge and thought about the art and process of generating printed words on a page.1 Much of that material in the Handbook probably is the handiwork of Judge Frank Easterbrook. As one can see from section III of this piece, Judge Easterbrook (1) has thought a lot about how to generate attractive written work product and (2) knows his stuff about the technical ins and out of producing it.

Which brings up to today's bench-slap-that-was-really-a-gentle-by-Easterbrookian-standards-bench-lesson. As Brad Heath of USA Today tweeted earlier today, Judge Easterbrook issued an opinion this morning that gave a pro-se litigant—and all of us, really—a lesson about the quirks of Microsoft Word and, like, words. As in word counts. And that lesson might help some of us avoid getting benchslapped for real. 

The word-count issue came to Judge Easterbrook in his role as motions judge. An appellee sought permission to file a brief containing more words than permitted by circuit rules. Their justification: their pro-se opponent represented that his brief contained less than 14,000 words, but it actually blasted past the limit by more than 2,500 words. So Judge Easterbrook struck the appellant's brief, ordered him to file a shorter one, and directed him to explain why he should not be sanctioned for falsely representing that his initial brief complied with the word limit. Here's how the appellant responded:

Screen Shot 2018-10-24 at 6.41.52 PM

Seems reasonable, right? Who among us has not looked at the "Properties" panel to get our Word count?

Turns out that we're doing Word wrong. Judge Easterbrook exposes the error of our ways:

Screen Shot 2018-10-24 at 6.46.28 PM

So word to the wise: don't use the "Properties" panel to certify your word count. Especially if your brief has footnotes.

Things ended reasonably well for our Word-challenged pro-se appellant. There was no bench slap; just an order to go forth and be Word savvy and word-count compliant:

Screen Shot 2018-10-24 at 6.48.50 PM

So, at certification time, remember: Word Count panel. Accept no substitutes.


1. For more, read Matthew Butterick's Typography for Lawyers and Ruth-Ann Robbins's classic "Painting with Print: Incorporating Concepts of Typographic and Layout Design into the Text of Legal Writing Documents." 

October 24, 2018 in Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Monday, October 22, 2018

Seventh Circuit Benchslap

Two weeks ago the Seventh Circuit issued a benchslap to a lawyer who modified her brief after being asked to resubmit her brief with a redacted appendix.  The facts of the case are not pretty.  On March 30, the attorney filed her brief (after 5 time extensions, one of which she requested when the brief was a day late).  Opposing counsel realized that the appendix to her brief contained material that the court had ordered redacted. 

On April 6, the granted the attorney's motion to file a corrected appendix.  The ordered directed her to  "'file by April 11, 2018,  a new electronic version of [the] brief that includes the fully-redacted appendix.'"  She complied with that order, but also made "substantial changes in the body of the brief, altering propositions of both fact and law."  Opposing counsel, once again, caught the discrepancies, and asked for more time to address these changes.  The court granted that request, but also directed the attorney to "file another brief that would eliminate the substantive and wording changes."  The Seventh Circuit cited its opinion in Khan v. Midwestern University, which addressed differences between electronic and paper versions of a brief.  In Khan, the court noted that paper and electronic versions must be identical.

The attorney resubmitted the brief, claiming that it was identical to the March 30 version, but it wasn't.  The attorney claimed that the changes were accidental and asked the court if she could "re-file the March 30 version with handwritten interlineations that would have made the printed brief different from the electronic version" and from the March 30 version.  The court, rather fed up by this point, issued an order giving the attorney "14 days to show cause why she should not be subject to professional discipline, including an order to pay any additional costs that appellants have incurred as a result of [her] repeated alternations of a brief that should have changed."

In her response, the attorney claimed that she thought that the order allowing her to make redactions also allowed her to make substantive changes to the brief.  The court "accept[ed] her assertion that she believed that she could do so," but noted that "errors made with an empty head are hard to excuse."  She blamed "the second error on infelicitous naming of files on her computer."  The court found this excuse harder to swallow, noting that she never compared the documents or reviewed date stamps.  According to the court, "Making an error once is bad; making it twice in a row--and in the teeth of the warning in Khan . . . is unfathomable."

Despite the harsh language, the attorney got off easy--just a public reprimand.

I find this opinion particularly interesting given the uneasy alliance between electronic and print copies of briefs.  Many judges are now working off of electronic copies of briefs, yet many circuit still require paper copies to be filed, sometimes a few days after the e-copy is due.  It is imperative that attorneys file identical copies.  As the Seventh Circuit noted, this requirement ensures that everyone is working for the same version of the document.  I am sure that this attorney learned her lesson.

 

October 22, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, October 11, 2018

Thinking Thursdays: Speak onto the Page

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

Thinking Thursdays: Speak onto the Page

The ideal advocate is both a skilled writer and a skilled speaker. Regardless of practice area, the law is a profession of words, and lawyers must be able to effectively communicate those words whether called upon to do so in a brief, in a contract, at oral argument, or when counseling a client. Yet, many lawyers experience a certain lopsidedness in their communication skills. Some of us are more confident writers than we are speakers (this blog author included!). Others are at our most articulate when speaking rather than writing.

Professor Peter Elbow, a Professor of English Emeritus at the University of Massachusetts Amherst, has written a book called Vernacular Eloquence: What Speech Can Bring to Writing that will appeal to lawyers of both stripes. Professor Elbow’s book sets out to be both theoretical and practical. Harnessing his frustrations about the “snobbery” of the culture of “correct writing” that he posits stifles and excludes many demographics of potentially good writers, Professor Elbow states that the theoretical goal of his book is to prove that “everyone with a native language has what it takes to write well.” Along those lines, the central argument of his book is that “we can enlist the language activity that most people find easiest, speaking, for the language activity most people find hardest, writing.”  

In addition to supporting his theoretical claim by marshaling a breadth of scholarship on writing and literacy, Professor Elbow offers practical suggestions for readers looking to improve their writing. The book suggests two major concrete ways to enlist speech for writing: (1) “talking onto the page” at the early stages of writing and (2) reading aloud to revise at the late stages.

Legal writing has long been criticized for being needlessly opaque. Typical speech, however, is rarely so incoherent. Most writing teachers, when faced with a confusing passage in a student work, will ask, “What did you mean here?” Usually, the student can speak a much clearer explanation of the passage than the passage itself. Professor Elbow says of this paradox, “the incoherence that comes from nonplanning is minor compared to the incoherence that comes from careful planning – unless it’s quite skilled.” In other words, while unplanned conversational speech may contain false starts, hesitations, and digressions, those aspects of speech do not interfere with the listener’s understanding nearly as much as certain aspects of planned typical writing can interfere. 

Professor Elbow, however, is careful to qualify his practical advice. He recognizes that professional writing quires a final draft in “correct English.” But he proposes that until that final draft, writers should “speak onto the page” and ignore internal voices that nag and criticize when that speech doesn’t produce polished results.

In the end, as one reviewer noted, “[Professor] Elbow is his own best argument for speaking onto the page: His voice is both authoritative and affable, conversational and professorial.” Lawyers looking to silence their inner critics would benefit from “listening” to Professor Elbow’s book.  

October 11, 2018 in Appellate Advocacy, Books, Legal Writing, Rhetoric | Permalink | Comments (0)

Thursday, September 27, 2018

Thinking Thursdays: Using Screenwriting Techniques to Tell More Compelling Stories

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

***

Storytelling is an integral part of a lawyer’s work, particularly for appellate lawyers. One critical aspect of effective storytelling is structure—and when it comes to structuring an effective story, lawyers can learn a little something from screenwriters.

In Teresa Bruce’s forthcoming article in the Journal of Legal Writing Institute, The Architecture of Drama: How Lawyers Can Use Screenwriting Techniques to Tell More Compelling Stories, Professor Bruce proposes that “lawyers build their stories in the same way Hollywood writers do.” Just as screenwriters follow a formula, lawyers should do the same: as IRAC is to argument sections, SCOR is to fact sections.

Professor Bruce’s article builds on existing storytelling literature, which approaches narrative theory from several different perspectives. The structural perspective uses a pragmatic or pedagogical approach, arguing that “[a] large part of telling an effective story is the order in which the reader presents information.”[i] Scholars in this area argue that an effective story structure helps judges and juries understand and remember information, and the story that flows most logically will be the story that seems most probable. As a result, good story structure can increase a client’s chance of winning.

Professor Bruce’s article takes the structural approach to narrative theory a step further by introducing the SCOR structure. Many lawyers will be familiar with the writing stages identified by Professor Betty Flowers: Madman, Architect, Carpenter, Judge. The Architect stage is where writers focus on “large, organizational, paragraph-level thinking.” The SCOR template gives writers a “flexible, generally applicable template they can use each time they tackle a new case.” This enables “lawyers to skip the Architecture stage entirely when writing a facts section (as IRAC enables them to do when writing an argument section).” Ultimately, Professor Bruce’s hope is that using SCOR will make it easier for lawyers to write their clients’ stories more coherently, which will result in clearer, more compelling, and more convincing stories.

So, what is SCOR? To explain SCOR, Professor Bruce begins with the classic three-act story structure, “the basis of Western storytelling.” Act I, the Setup, establishes the protagonist’s “status quo.” Act II, the Confrontation, breaks the status quo and takes the protagonist on a journey to a point of climax. Act III, the Resolution, introduces the protagonist’s “new normal” and resolves any unanswered questions. Taking this basic story structure a step further, advanced story structure builds additional milestones into each act to create an overarching “story arc” that provides “rising tension throughout the first and second acts and falling tension during the third.” Professor Bruce illustrates both the basic and advanced story structure through a classic movie, The Wizard of Oz.

Professor Bruce then translates this traditional formula into legal writing: Setup, Confrontation, Outcome, Resolution, or SCOR. As in advanced screenwriting, within each act, additional milestones help to give the story added structure and keep audience members engaged.

First, the Setup, Act I, humanizes the client by establishing the client’s life and status quo before the “bad event” of the litigation. Second, the Confrontation, Act II, is the “meat” of the story—it introduces the client’s antagonist and sets out the pivotal (i.e. outcome-determinative) facts. While the opposing party will often be the antagonist, for some clients, the antagonist will be subtler. For example, for less-sympathetic clients, the antagonist might be “mental-health problems, addiction, childhood trauma, or poverty.”

The third and fourth components of the story are the Outcome and the Resolution, Act III. The Outcome is “the end of the protagonist’s quest,” while the Resolution is “where the audience gets closure.” This is the most difficult section for legal writers because a “lawyer cannot simply resolve her client’s story . . . the way a screenwriter can.” Instead, the lawyer may invite closure by inviting “the judge or the jury to resolve the storyline in a way that favors the client.”

To illustrate how this structure works and why it is effective, Professor Bruce uses the statement of facts in the Petition for Certiorari in Miranda v. Arizona. This statement of facts helps illustrate the SCOR structure, but also shows how the structure “can work even for a largely unsympathetic defendant, one who has been convicted of a violent crime.” In addition, Professor Bruce points out that other landmark briefs use a similar story structure.

I encourage practitioners, legal writing professors, and law students to read Professor Bruce’s article. In the article, she provides a more in-depth discussion of advanced storytelling structure, including the milestones within each act. SCOR provides a practical, accessible, and memorable way to help lawyers incorporate storytelling into their legal writing. And if lawyers can make their clients’ stories more accessible to their audiences, those stories will hopefully also be clearer, more compelling, and more convincing.

Special thanks to Alison Doyle for her help with this blog post.

[i] Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Fact Sections, 32 Rutgers L.J. 459, 475 (2001).

September 27, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Film, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, Television, United States Supreme Court | Permalink | Comments (0)

Thursday, September 13, 2018

Thinking Thursdays: ALWD Guide to Legal Citation -- the Sixth Edition is better than ever.

Abigail Patthoff, guest blogger, Professor of Legal Writing, Chapman University Fowler School of Law

When the much-anticipated ALWD Citation Manual: A Professional System of Citation was first published in 2000, it was heralded by many as the answer to the legal citation woes of so many law students, law professors, and practitioners.  An end to the tyranny of The Bluebook! A coup de grace!  

And indeed, the manual delivered a citation system that was as user-friendly as The Bluebook is daunting. In doing so, in addition to offering more example formats, more navigable organization, and a more approachable book design, the manual also set out to improve upon the substance of the rules themselves. Most significantly, early editions of the manual eliminated The Bluebook’s double set of rules calling for different citation formats for practitioners’ documents and academic articles. The purpose was sensible – to offer a single, consistent set of rules that operate across all settings and to prioritize the kinds of citations being used in legal practice rather than legal academia.

Many legal writing programs in law schools across the country adopted the manual and a number of courts followed suit, adding the ALWD Citation Manual as a permissible alternative system of citation for court filings. Despite early enthusiasm for the ALWD Citation Manual, however, in the 18 years since its initial publication, it has not unseated The Bluebook as the most popular most widely used legal citation manual. Early adopters – myself included – met with pushback from students and colleagues about the differences between the rules in the ALWD Citation Manual and The Bluebook. Would 1Ls be adequately prepared to serve as editors of school law reviews, where The Bluebook remains entrenched? Would a generation of law students schooled in the ALWD Citation Manual be prepared to enter a practicing bar where The Bluebook was still the standard?

Under some pressure, I switched back to teaching The Bluebook. And I didn’t look back until I joined the editorial board of Legal Communication and Rhetoric: JALWD, a peer-reviewed journal, when I was assigned to do a cite check of certain journal submissions. Legal Communication and Rhetoric: JALWD requires ALWD citation format, so for the first time in four or five years I picked up a copy of the ALWD manual, which was now in its 6th edition. And it was a breath of fresh air. There was the user- and learner-friendly formatting I’d remembered, but even better. Fast formats! Charts! Abundant examples! But even more notable was this announcement, quietly made in the preface to the 5th edition: based on the feedback of ALWD members who “urged that ALWD modify its rules to acknowledge” the “staying power of certain scholarly traditions in legal citation” the ALWD Citation Manual underwent significant revision. In other words, the ALWD manual now contains no significant differences in the substance of its rules from the “traditional” rules in the most current edition of The Bluebook. As the Legal Writing Prof blog put it in a brief post acknowledging the publication of the fifth edition, “You'll no longer see differences between citations made with the Bluebook and citations made with the ALWD Manual.  The only difference is that you'll be able to understand and use the ALWD Manual!”  

This change was reflected in a slightly new name for the manual – the ALWD Guide to Legal Citation – but was rolled out with surprisingly little fanfare. So, consider this blog post a trumpet blast in support of the new edition. If you haven’t picked up a copy of ALWD lately, do yourself a favor and run to your preferred bookseller. The sixth edition is excellent. And now that the concerns that created barriers to adopting ALWD have been removed, my students will discover it, too.

September 13, 2018 in Books, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Thursday, August 30, 2018

Thinking Thursdays: Making Citations Stylish

Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School

*****

Professor Alexa Chew’s forthcoming article, Stylish Legal Citation, asks whether legal citations can be stylish. Spoiler alert: The answer is yes.

What is a “stylish” citation? It is a citation that is “fully integrated with the prose to convey information in a readable way to a legal audience.” For law-trained readers, well-written citations communicate substantive information about the authorities that support the assertions in the text and the degree of support that the authorities provide. And when citations are well-written, they can “enhance the writer’s experience in the way that well-written prose can.” On the other hand, poorly written citations make it difficult for legal readers to understand the prose. As a result, readers will either skip over the citations or “slow to a painful crawl.”

What makes a citation “unstylish”? Professor Chew groups poorly written citations into two categories: “bumpy” citations and “presumptuous” citations. Bumpy citations interrupt the prose rather than working with it, while presumptuous citations communicate information that the reader expects to see not in the citation but in the prose. Bumpy and presumptuous citations are problematic in and of themselves, but identifying them can also help readers identify other writing problems.

In spite of the communicative role that citations play in legal writing, there is very little guidance about how to cite stylishly. Most legal writing texts don’t treat citation as a facet of legal writing style at all; as a result, they provide little to no advice about how to incorporate citations well. Similarly, many legal writers treat citations as an afterthought—a “separate, inferior part of the writing process, a perfunctory task that satisfies a convention but isn’t worth the attention that stylish writers spend on the ‘real’ words in their documents.”

So, how can you make your citations more stylish? Professor Chew describes a three-part system that any legal writer can follow, focusing on: (1) choosing what to cite; (2) writing the citation; and (3) revising to tie together prose and citations.

Professor Chew begins by providing advice on choosing what authority to cite and how many authorities to cite. She then provides guidance on writing the citation itself—choosing the citation placement, signal, and parenthetical content. As Professor Chew explains, these decisions should not be based on the Bluebook (or any other citation guide). Instead, they “should be driven by your understanding of the prose and its substantive relationship to the cited authority.” Finally, she provides advice on how to tie together the prose and the citations, i.e. how to identify the bumpy or presumptuous citations (which might also be signs of other writing problems) so that you can fix them.

There is one legal writing style expert who does provide guidance about citations—Bryan Garner. But the guidance that he provides isn’t about how to make in-line citations stylish because he views citations as “impediments to stylish legal writing.” Instead, Garner argues that writers should use footnotes instead of in-line citations.

Professor Chew rejects Garner’s critique of in-line citations because it is based on “the premise that writers aren’t up to the challenge of skillfully incorporating citations into their texts in a way that readers can follow.” Using footnotes may avoid some citation problems and may eliminate visual clutter, making it easier for writers to spot poorly written prose. However, it creates other writing problems. Even if citations are moved to footnotes, legal readers can’t ignore them because the citations convey necessary information about the authority that supports the assertions in the text. As Justice Scalia, Garner’s co-author, noted, moving citations to the footnotes thus “forces the reader’s “eyes to bounce repeatedly from text to footnote.” And weaving the details from the citations (such as the case name, court, and date) into the text might solve that problem but creates a new one in that it overemphasizes information that often isn’t worth emphasizing and makes the prose more awkward.

Instead, Professor Chew encourages legal writers to embrace in-line citations. In-line citations give the reader control over how much attention they pay to the citations by skimming them over or reading them in more detail. In general, readers pay less attention to citations than they do to prose, and this allows citations to be placed “right next to the propositions they support, at the reader’s point of need.” As a result, “in-line citations can convey information ‘almost subliminally’ as readers’ eyes speed across them.”

Professor Chew’s article fills an often-overlooked gap in the legal style literature, and it does so in a practical way. I encourage students, professors, and practitioners to read Professor Chew’s article for more detail, especially the “how tos” of making citations more stylish. I didn’t need much convincing about the importance of citation to legal writing, but Professor Chew’s article still made me think more deliberately about the role that citations play in good legal writing. And for those of you who teach legal writing (whether first-year or upper level), her article also makes the case for better integrating citations into the legal writing curriculum. Finally, if, like me, you can’t get enough of Professor Chew’s writing on citations, don’t miss her Citation Literacy article.

August 30, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, August 16, 2018

Thinking Thursdays: Building a Dialogue Between Scholars and Practitioners

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

This is my last post for at least a long while—I will be on sabbatical this semester. What does someone invested in the field of legal writing do for sabbatical? She works to build the discipline. In my case, it’s researching and writing a topic that I hope will be of interest to members of the practicing bar as well as other scholars in the field.

Legal writing is a misnamed field. Scholars and teachers focus less on the mechanics of writing than they do on rhetorical analysis, and the nature of communication as part of client representation. A modern legal writing professor cares less about the sections of a memo than she does about the science of persuasion and the implications for legal advocacy. In this pursuit, the scholar connects with the practitioner. Many, many articles are written for a practitioner audience. I have had the joy of talking about several in this blog, and the bloggers who are taking over after this will be doing the same.

At a recent national conference, a group of legal writing “discipline-builders” sat around and talked about the landscape and trajectory of scholarship. We created a word cloud to capture the dialogue already out there—most of it created in the last twenty years. Here’s what it looks like:

DBWG#3 Wordle shown at 2018 biennial conferenceAs you can see, the conversations is rich, and varied. It's not your Mom's legal writing course anymore. Rather, the dialogue is dynamic and deep. This is an exciting time for scholarship in the discipline. I hope that you will join the conversation. And, thank you for reading these blogs.

August 16, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Thursday, August 2, 2018

Thinking Thursdays: Story Believability

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Dr. J. Christopher Rideout, at Seattle School of Law wants lawyers to appreciate the elements of narrative plausibility (colloquially: story believability). The believability quotient is affected by whether the proffered story’s structure bears up in its consistency and completeness, and whether the story's substance jibes with the audience's experiences and lessons learned from those experiences. In his Journal of Legal Writing article Storytelling, Narrative Rationality, and Legal Persuasion, Rideout explains that his understanding of what persuades in law has shifted from one grounded primarily in rhetorical models of persuasion to now include narrative models as well.

To be persuasive, a narrative must possess narrative probability and narrative fidelity. Narrative probability is formalistic, in that it is structural. It involves two elements: coherence and correspondence. Narrative fidelity, in contrast, is substantive, focusing on the content. The bulk of rhetorician’s work on the persuasive structure of narratives has focused on the structural features. The way in which a story is told influences its credibility. “regardless of the actual truth status of the story.”[1]

Narrative coherence refers to the way the parts of the story fits together. The story structure should have a cause and effect flow. Having that cause and effect flow makes a story feel feasible—thus, the story that is presented most coherently will be the story that feels the most probable. To be coherent, a story must also be complete—that it contains all of the expected parts of a story. While the audience may be able to fill in some of the elements with inferences, a story that is too incomplete will appear to have logical gaps.

Narrative correspondence. the second formal (structural) requirement, lines up what the audience believes typically happens in the world. As story consumers we are always comparing the story being told with how we have experienced our world’s physical properties or within the audience’s mental storehouse of social knowledge. A story that contradicts the audience’s understandings of how things work will lack plausibility. While the story need not conform precisely to the most-common-flow in a given situation, it must be congruent to how humans react in given situations.

Dr. Rideout spends the second half of the article working through his suggestion that when competing legal narratives have equally compelling story probability, the substantive concept of narrative fidelity may tip the persuasion scales. Narrative fidelity may feel like narrative correspondence but is not structural in nature. The story must present good reasons for belief or action. It must fit with the social norms of the setting and moment in time. Fidelity goes beyond formal inferences to include what one rhetorician terms “communal validity.”[2] The story should have a “tug” to it because it appeals to our lived experiences and the values derived therefrom. Stories that win, do so for the logical construct but also for the substantive fit.   

 

[1] W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom: Justice and Judgement in American Culture, 89 (Rutgers Univ. Press 1981).

[2] Robert Burns, A Theory of the Trial, 217 (Princeton Univ. Press 1999).

August 2, 2018 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 19, 2018

Thinking Thursdays: The hero of hyphens

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

******************

Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem?  Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.

Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.

The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns.  Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.

Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.

The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.

July 19, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, July 5, 2018

Thinking Thursdays: Consider your reader's working-memory limits

Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School

*********************************

Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.

Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.

Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.  

Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.

Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.

Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.

July 5, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (0)

Thursday, June 14, 2018

What is so hard about attribution?

A Chicago attorney may be in trouble for plagiarism. The abrupt writing style change in the middle of his brief was easily Googled and more than 1,000 words were discovered to be lifted from two separate sources - a law bulletin and a primer series. 

Plagiarism of this sort is not hard for the reader to detect. For law students, it means an honor code violation, and for licensed attorneys it means possible ethical violations. There is little room to argue that it was done unknowingly, and at the least, this type of behavior is negligent. Using over 1,000 words though, it is a stretch to believe that laziness and arrogance weren't also involved.

Most people first encounter the concept of plagiarism in an academic setting, where they are taught that plagiarism consists of using the words or ideas of another without attribution. For example, the Modern Language Association defines plagiarism thus:

“Using another person’s ideas or expressions in your writing without acknowledging the source constitutes plagiarism.... [T]o plagiarize is to give the impression that you wrote or thought something that you in fact borrowed from someone, and to do so is a violation of professional ethics.

“Forms of plagiarism include the failure to give appropriate acknowledgment when repeating another’s wording or particularly apt phrase, paraphrasing another’s argument, and presenting another’s line of thinking."

In academic writing, a premium is put on finding and communicating ideas that have not been discovered before. Law students must write their law review articles on a subject not yet preempted by another author. They must find something unique to say about a topic. Practicing attorneys, on the other hand, have a different focus. Most often they need to use another's words in order to support their own argument. It is the existence of another's idea that makes their case stronger. So it remains baffling why a practicing attorney would not give attribution to his source. (Frequently, it appears as if attribution is given because citations are copied and paste along with the text - but another has arranged these words in a particular, unique way, and that must be credited).

This behavior is further puzzling when it is done without much effort to to hide the offense. Some work went into finding the excerpt, and shoving it into the right spot in the document, so why not revise the words and the style to match the rest? Does this plagiarizer think he can so blatantly submit a patchwork document and it not be noticed? Not likely, and not ethical or professional.

In the case of the Chicago attorney referenced here, he charges $400.00 per hour. Apparently, copy and paste is the best his client can expect for that pittance of a fee. 

June 14, 2018 in Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Monday, June 11, 2018

Return to Judgment (not Judgement)

Earlier this year I blogged about students (and a well-known national gym franchise) spelling the word judgment with the letter "e" appearing twice--in "judge" and in "ment."  In my initial post, I took a cursory look at how the U.S. Supreme Court spells the word, finding that it overwhelmingly prefersthe single "e" version of the word.

The topic intrigued me so much, I decided to dig a little deeper and write a short article on it.  I am pleased to announce that the article will be published in the Spring 2018 edition of The Green Bag.  You can preview the article here.

The article starts with an Originalist inquiry into the spelling of judgment--looking at how the word was spelled in state constitutions and other important founding documents.  I then explore English language and legal dictionaries to see how those sources spelled the word.  I end with a much more detailed look at the Supreme Court's treatment of the word, using various legal research databases to identify every instance of "judgement" appearing in the U.S. Reports.  

Although I do encourage you to read the article (it is quite short), I am happy to share my conclusion in this post. In legal writing, judgment should be spelled with only one "e."  That is the preferred spelling of the early sources, the dictionaries, and the U.S. Supreme Court.  For those who want to cling to the double "e" version of the word, I implore you to be consistent in your writing. While seeing judgement in a brief does cause me to cringe, I cringe even more when I see the word spelled two different ways, sometimes in the same paragraph or sentence.

June 11, 2018 in Legal Writing, United States Supreme Court | Permalink | Comments (0)

Thursday, May 24, 2018

Thinking Thursdays: What's in a parenthetical?

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Parentheticals. We love them, but we don’t always understand how to use them. An empirical study and article by Professor Michael Murray compiling the most-often use of these legal-writing creatures, demonstrates that most of the time they are used either incorrectly or inefficiently. Parentheticals are best employed to illustrate the governing rule of law by pointing to key facts from precedential narratives. Or, to embed a pithy quote that likewise illustrates a point.

Parentheticals are typically used when an illustration can be easily reduced to a comprehensible present-participle phrase. Experts also consider relevance in the equation. Sometimes the efficiencies suggest the use of a parenthetical to save space, i.e. when the precedential case isn’t important enough to elevate to an in-text explanation. A parenthetical can also be used to make a point about a rule being used in a series of precedential cases. That is, the parentheticals can then form visual support for synthesis such as, “the five cases that analyzed this point all interpreted the term broadly.” Five cites with parentheticals would then follow.

However, the substance inside parentheticals are sometimes visually difficult to locate, coming at the end of a citation sentence. If a case is more relevant to the client’s outcome, a better choice may be using one or two sentences of in-text explanation in lieu of the parenthetical. 

Michael Smith, at Wyoming College of Law is *the* expert on this topic, and his Advanced Legal Writing textbook’s Chapter 3 has been termed by 15 years of upper-division law students as “mandatory reading for any to-be lawyer or lawyer.”[1]  In the chapter he categorizes types of narration one might do in a parenthetical:

  • Illustrate for elucidation (using a parenthetical to illustrate how a rule operated in a precedential case).
  • Illustrate for elimination (using a parenthetical to eliminate possible misinterpretations of general rules).
  • Illustrate for affiliation (using a parenthetical to tie a rule to something in the everyday knowledge of the reader—a reference to a cultural icon, publication, or phenomenon).
  • Illustrate for accentuation (using a parenthetical to demonstrate how one word in the rule that might otherwise be overlooked is actually the key to solving ambiguities).

In my own textbook, written with Steve Johansen and with Professor Smith’s colleague Ken Chestek, we expand slightly on Professor Smith’s categories, by talking about one-word or one-phrase uses of parentheticals.[2] That is used in situations where a single word or phrase can conjure a story-scene for the reader and make the elucidation point. By way of quick example, “New Jersey considers the smallest of offensive touches ‘bodily injury’ in its criminal caselaw. [case cite] (slap); [case cite] (shove); [case cite] (kick); [case cite] (pinch).” We also talk about times when you can use quotations effectively in parentheticals: when it’s unique language that succinctly illustrates the rule. “wall of separation” is a good example of this.

Professor Smith also includes cautions for the use of parentheticals, and it is here that the numbers crunched by Professor Murray in his article make clear what is going wrong in the majority of appellate briefs. The number one and number two issues that Professor Smith sees in the drafting of parenthetical substance? Exactly what Professor Murray sees the most in his data. The error of placing the rule in the parenthetical. Or, the error of restating the rule in the parenthetical. That is, quoting the rule the attorney just synthesized into a client-oriented rule statement—or should have just synthesized that way. Restating the rule is simply a crutch for the writer—as if to say, “I really did read the case!” Restating the rule also ruins the cause-to-effect narrative flow of the rule illustration/rule explanation part of legal analysis.

Other common errors include being too overbroad in the factual illustration or being too specific. The right height to look down on the case and describe facts for parenthetical purposes is something like 30 feet from the ground. What can you see of a precedent’s story from that height? Not every blade of grass, but maybe a person’s front yard.

What is the takeaway? Parentheticals are an important tool in the lawyer’s kit, when used to promote persuasion and efficiency. They can, however, be cluttering and in some cases can add bulk if they are merely repetitive. Use them well—and use them wisely.

 

[1] You can preview part of Professor Smith’s Chapter 3 via Google Books. Search string: “Michael R. Smith” & parentheticals

[2] Do not pay the list price for a new book. The second edition is coming out this fall and will make this first edition a heck of a lot cheaper. 

May 24, 2018 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

Business-764929_1280

But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Wednesday, April 18, 2018

On the Benefits of Moot Court: Writing Development

Often, I find myself in a conversation about the validity of Moot Court programs in law school.  This discussion is perpetual. Indeed, while I was in law school, a pair of articles were published discussing this issue. One clearly opposed, and in support, of the moot court experience. See Alex Kozinski, In Praise of Moot Court--Not! , 97 Colum. L. Rev. 178 (1997); Michael V. Hernandez, In Defense of Moot Court: A Response to "In Praise of Moot Court--Not!", 17 Rev. Litig. 69 (1998).  Those that know me, understand that I am a big fan of moot court, even if you have no intention to enter appellate practice. Over the next few weeks, I will address my views on the moot court experience.

In this post, I address how the moot court experience enhances a student's writing skills.

During the first year of a student's law school experience, we take mostly good, or even excellent writers, and change how they perceive the writing process.  In some instances, we find students who need real work on basic writing skills, but for most, it is just a matter of getting them to buy into a new approach. No longer are students using filler to reach some magical minimum word count, no longer are we rewarding free-flowing prose.  Students must constrain their writing to maximum word counts, and to seemingly arbitrary formulas.  My students complain about CREAC, CRAC, IRAC, or CRuPAC, or whatever the acronym of the day is, at least until they have embraced it.  I liken good legal writing to an instruction manual that must be written in a manner that frees the reader to focus on the analysis. Certainly, by the end of the first-year students are capable of writing good briefs. They reach legal conclusions that are sound and built upon a strong, rule-based foundations.  Such writing is good, and if a student were to enter the legal community immediately after their first year, their writing would be sufficient.

But, sufficiency is not enough. As a practicing attorney, I never had the better part of a semester to write a brief. I've written multiple briefs and pleadings in a single week.  If my writing was only sufficient, I would have struggled to put together coherent briefs and pleadings at that pace.  So I push my students to excellence, and they way to do that is through practice.  The more one writes, the easier it is.

Many law schools with strong moot court programs have a class dedicated to appellate advocacy or brief writing.  These classes take the skills a student learns in their first year and builds on those skills.  Students learn when and how to step away from the basic CREAC formula. They learn how to write many different types of arguments.  They gain extra practice.

Once a student is in competition, the student develops skills that can only come from practicing their skills with no input.  Students gain confidence when they realize that they can write a brief, with difficult legal or factual issues, without getting constant reassurance or guidance from their professors. Students learn the importance of crafting an error free document, and from taking the time to review and edit the document.  When they begin preparing for oral argument they will learn the value of listening to the inner voice that tells you an issue either is or isn't worth mentioning in the brief.  When they compete a second  or third time, that skill will be utilized to create an even better written product.

In short, moot court gives students multiple opportunities to develop and perfect the practice-ready writing skills a student gains in their first year, and which every practice attorney needs. 

 

April 18, 2018 in Appellate Advocacy, Appellate Practice, Legal Writing, Moot Court | Permalink | Comments (0)

Monday, April 9, 2018

Top Tips From Appellate Judges

After a two week travel hiatus, I am back to posting!

Last weekend I traveled to Little Rock, Arkansas to speak at the First Annual Justice Donald L. Corbin Appellate Symposium.  The Symposium was organized by the Pulaski County Bar Foundation and the Corbin family.  I had a marvelous time!  Not only were the speakers warmly welcomed and well-cared for, I was astounded by the quality of speakers that the Foundation secured.

Although my travel schedule prevented me from attending most of the symposium, I enjoyed Prof. Steven A. Drizin's presentation on false confessions by juveniles.  Prof. Drizin is part of Brendan Dassey's appellate legal team.  Attendees also heard presentations by Dean Erwin Chemerinsky, Judge Beverly Martin, Judge Mary Murguia, and Judge Bernice Donald.  And they heard a presentation from me. 

My presentation was entitled "Top 10 Tips from Appellate Judges."  As I noted at the start of the presentation, the irony of the topic was not lost on me.  Here I was, a law professor, giving tips from judges to a group of people who had heard from several distinguished appellate judges.  But, as I explained, my tips represented the views of the collective judiciary, culled from my work on the third edition of Winning on Appeal.  For the next several weeks, I am going to share a few of the tips from my presentation.

I started the presentation with the most important, most common, complaint about briefs that we received from judges--that they are just too long.  As one judge put it, "They're called briefs, not longs."

Why are overlong briefs so bad?  First, judges have a lot to read. The average federal appellate judge decides about 550 cases a year.  That means reading at least 100o briefs a year.  If each brief is 50 pages long, that means that judges read at least 50,000 pages of  briefs each year.  Second, long briefs are hard to read in one sitting, which makes it hard for judges to compare arguments between briefs.  Third, judges have finite attention spans.  It is hard to remain excited about reading a long, unfocused brief.

So, how do you cut down your brief?  The judges who responded to our survey for Winning on Appeal had some great tips, two of which I will share here:

  1. "Think first, and edit ruthlessly."  Think about what you need to prove to win, and orient your entire brief around that point (or points).  What is the "flashpoint of controversy" in the case.  If it is just about applying the law to the facts, don't spend pages in your brief justifying the legal rule.  Just apply the established rule to your facts.
  2. Avoid needless repetition or extraneous facts.  Again, keep your brief focused on the dispute. Only include materially important facts when describing extraneous cases, and in your statement of facts, don't go overboard on persuasive and background facts.

Writing a detailed outline before you start typing the argument is one way to keep your argument on track.

Next week I will discuss a second tip, which also helps keep your brief concise--selecting issues.

April 9, 2018 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Thursday, March 29, 2018

Thinking Thursdays: Know your Logical Fallacies (Part 2)

In my last Thinking Thursday, I discussed some common logical fallacies that lawyers may fall prey to. Specifically, I focused on non-sequitur fallacies and insufficient evidence fallacies. Based on responses to my previous blog entry, I am going to review one category in this piece, and one more in the next entry.

Today I am focusing on shallow thinking fallacies. [1]

By way of quick review, logical fallacies happen when something goes wrong with the legal syllogism. Here is a proper albeit simplistic legal syllogism:

            Major premise:           The speed limit where defendant was arrested is 45 MPH.

             Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                    Defendant was speeding

In shallow thinking fallacies, the advocate begins with a faulty major premise. The claimed “rule” is not a rule at all or is poorly articulated. Below are four shallow thinking fallacies.

Logic 2

1. You can spot a false dichotomy fallacy when you are presented only two choices to a complex issue that in fact offer multiple choices. For example, “If you don’t like chocolate, you must like vanilla.” Or, “you are either a Star Trek or a Star Wars person.”

Here’s how the syllogism goes wrong:

The False Dichotomy

Major Premise

Minor Premise

Conclusion

People can either like Star Wars or Star Trek, but cannot like both

You like Star Trek

You do not like Star Wars

False

True

Logical but incorrect

Some legal maxims are actually examples of this fallacy, including one of the trial lawyer’s favorites: falsus in uno, falsus in omnibus (if a witness lies about one thing, he is lying about everything).

2.Next is the bandwagon fallacy, or what I like to call “teenager logic,” It goes like this, “everybody agrees with this premise.” The obvious implication—so if everyone agrees, it must be correct. The internet is full of the faceless, nameless, “everyone says so” comments, sometimes supposedly supported by unscientific or undocumented polls. Lawyers might see this argument appear in the guise of an uncited “weight of authority” type of argument: “Most other jurisdictions do it this way!” Or, “This is a well-settled rule of law, dating back to antiquity.” [no or very few citations]. This one is a fallacy mostly because the major premise (“everybody agrees”) is not supported by sufficient authority. The premise might be true, but the skeptical reader will likely see this sort of argument as a cover-up for a weak or non-existent rule. A string citation can help overcome a bandwagon fallacy—one of the few times a string citation is actually useful: To show the weight of authority.

3.The third shallow thinking fallacy, the middle ground fallacy, is also known as the King Solomon Solution. This fallacy assumes that when two parties begin from distant or opposite positions, the position squarely in the middle of those two positions is the optimal solution. This kind of fallacy relies on the predilection of humans to rely on opening anchors for negotiation points--if the opening anchor is unrealistic, the rest of the negotiation can become fallacious. You can read more about this on the website of the Harvard Program on Negotiations.

Once again, this major premise contains fundamental flaws—in this case, the flaw in thinking that both positions are equally valid. They might not be. The problem, of course, is that the solution disregards the possibility that one position is objectively reasonable (or legally sound) and the other is grossly unreasonable (or legally unsound). While our legal system encourages and values compromise, when faced with this particular fallacy compromise leads to unreasonable or legally unsound results.

The Middle Ground Fallacy

Major Premise

Minor Premise

Conclusion

The best resolution of any valuation issue is the average of the two expert opinions

Plaintiff’s expert values the property at $500,000, but Defendant’s expert values it at $150,000

The property is worth $325,000

False

True

Logical but unsupported

4. Related to this, the fallacy of false balances also starts with a fundamental flaw in the major premise. Not all sides of an issue deserve equal weight in every situation. Sometimes one side of a debate has little or no weight at all, and therefore deserves little or no role in the debate. Journalists are often accused of allowing air time to fallacious debates even though one side is without merit.

In practice, this fallacy commonly appears in debates that involve proven science. The scientific method involves repeat experiments by different groups of scientists to verify stated conclusions. Once that has happened and conclusions have been accepted by a majority of scientists in the field, it is a logical fallacy to say that a dissenting view is equally balanced to the proved science. Allowing a debate about whether the moon revolves around the earth or vice versa would fall into this category of fallacies. As with the Fallacy of False Equivalency, lawyers can fall prey to this type of fallacy because we are taught to problem-solve through negotiation and compromise.

The False Balance Fallacy

Major Premise

Minor Premise

Conclusion

The Earth might be flat or round

I believe the Earth is flat

The Earth is flat

False

True (he “believes”)

Logical but False

Keep an eye out in your writing and in your colleagues’ to help correct any of these you spot in their analysis.

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

[1] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 29, 2018 in Appellate Advocacy, Appellate Practice, Arbitration, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (0)

Thursday, March 15, 2018

Thinking Thursdays: Know your logical fallacies (Part 1)

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

Faulty reasoning undermines the substances of a legal argument as well as the credibility of the advocate. After a quick search of the online briefs available on Westlaw and Lexis, I can safely tell you that several thousand appellate briefs reference logical fallacies—typically as a precursor to a direct refutation of an opposing party’s argument. How many of us these days know our logical fallacies as well as we should?

Beyond calling out opposing counsel for these errors, the wise attorney also tests their own writing to see if they have relied on fallacious thinking. In most logical fallacies, something has gone wrong with the legal syllogism. In a sense, the major premise of a syllogism is a rule, while the minor premise is a fact. The conclusion flows from the application of the rule to the fact. Here is a simple example.[1]

            Major premise:          The speed limit where defendant was arrested is 45 MPH.

            Minor Premise:          The working-perfectly radar gun clocked defendant at 63 MPH.

            Conclusion:                Defendant was speeding

In most logical fallacies, some part of the syllogism fails. There are four major categories of logical fallacies in law. Today’s blog entry goes through the first two groups of common fallacies: the non-sequitur fallacies and the insufficient evidence fallacies. The next Thinking Thursday blog entry will discuss two other categories: shallow thinking and avoidance fallacies.  

Logic 21. Non-sequitur fallacies. In a non-sequitur, the major premise is applied incorrectly to the minor premise. You can recognize these when the conclusion does not logically flow from the premise

1.1  The correlation equals causation fallacy commonly appears with statistical analyses. The arguer claims that because A and B appear together A must have caused B. The argument that the MMR vaccine causes babies to develop autism is a classic example of this type of fallacy. This amusing site shows these fallacies taken to the extreme.

1.2  The post hoc fallacy is closely related to the correlation/causation fallacy. The arguer claims that because A occurrence is followed by B occurrence, A’s occurrence must have caused B to occur. For example, after I ate an apple, I won an award—ergo, eating the apple caused me to win the award. In law, this sometimes shows up this way: When Pat drinks, Pat becomes violent. Therefore, Pat’s violence is caused by alcohol. That is a logical fallacy. Alcohol may lower inhibitions but does not cause violence by itself. 

2. Insufficient evidence fallacies contain faulty minor premises—faulty because they are false or based in inadequate material. There are three major types of these.

2.1  The hasty generalization fallacy happens when lawyers draw big and general conclusions from too small a sample size or from unrelated evidence. “Climate change has been solved because this winter New Jersey saw frigid temperatures in late December and early January, and because it saw two nor’easter storms in March.” In that example, the weather from one three-month period is being used to argue that a decades-old phenomenon is over or never existed. To show this syllogistically:   

Major premise: Climate change is making things warmer

Minor premise (flawed): weather over a three-month period matters to climate change

Conclusion (faulty): Climate change is over or solved.

2.2  The anecdotal evidence fallacy is related to the hasty generalization fallacy. The anecdotal evidence fallacy occurs when there is simply inadequate evidence to support the minor premise.

Major premise:  Some cities offer Segway tours of tourist areas.

Minor premise (flawed): I have never seen people on a Segway tour of Philadelphia.

Conclusion (faulty): Philadelphia does not have Segway tours.

2.3  Finally, shallow legal research can lead to the Texas sharpshooter fallacy. As a classic example, a person shoots an arrow at a barn wall, and then draws a bullseye around the arrow in the wall. That’s a logical fallacy and happens in the minor premise—i.e. “this is a target with a bullseye.” A Texas sharpshooter fallacy happens when someone builds legal analysis and argumentation around incomplete legal research. Think of this fallacy as related to a confirmation bias—when the legal researcher stops researching when they find a result that demonstrates the governing rule that they want for their client, versus what the rule might actually be.

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It is easy enough these days to practice spotting logical fallacies simply by watching television. Many advertisements use fallacious reasoning in the marketing. Politicians will sometimes fall into the logical fallacy trap as well—watching the news for a week or two should net you a few examples. But, most importantly, review your own advocacy for these common errors.

] Thank you to Professor Ken Chestek (Wyoming) and Professor Steve Johansen (Lewis & Clark) for these examples. They come from the upcoming second edition of our co-authored textbook, Your Client’s Story: Persuasive Legal Writing (2d ed. Wolters Kluwer, expected publication date of later this year).

March 15, 2018 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Oral Argument, Rhetoric, State Appeals Courts | Permalink | Comments (1)