Saturday, April 20, 2019
On July 1, 2019, the Supreme Court of the United States will impose a new, shorter word limit for principal briefs. The change affects Supreme Court Rule 33.1(g), decreasing the word limit for principal merits briefs from 15,000 to 13,000. The change brings the Court in line with the federal Courts of Appeal. Since December 1, 2016, the Federal Rules of Appellate Procedure have allotted only 13,000 words for opening and response briefs.
The Court rejected one of the more controversial proposed rules. That proposal would have limited reply briefs to 4,500 words. Even so, the Court did shorten the time for filing a reply brief. Previously, merits replies were due (1) 30 days after the respondent filed its merits response or (2) no later than 2 p.m. on the date seven days before the case was scheduled for argument, whichever was earlier. The amended rule keeps the 30-day window but pushes the seven-days-before-argument deadline to 10.
So why did the Court adopt these changes? I don't claim to know the answer, but I expect that it has something to do with the fact that most briefs are simply too long. Anecdotally, I once heard an appellate judge comment that every appeal really has one issue, maybe two. It's clear that some lawyers—yours truly included—forget that sometimes.
So how can you come in under these shorter word limits? That's simple—better writing. Here are some things to do, and to avoid, to bring your brief under the word limit.
- Do use fewer words, not more: Legal writers often are guilty of using phrases like "pursuant to," "prior to," or "on or about." Don't. Instead of these wordy phrases, try "under," "before," and "on." This seems like a no-brainer, but I've encountered many lawyers that refuse to give these anachronisms up. As an aside, I've also encountered several that use "pursuant to" incorrectly. Things don't happen "pursuant to" anyone's recollection. If you can't replace the phrase "pursuant to" with the word "under," you should re-write.
- Do run a search for the word "of." I never noticed it, but many phrases with the word "of" can be rewritten to eliminate one, often two words. Consider the common phrases "the issue of" or "the question of." You're likely able to pull those out without doing violence to your brief. Also, if you're using an "of" phrase, there's also a chance you could use a possessive.
- Do run a search for "ly." You're hopefully not going to find very many adverbs. But if you do, take them out unless they're necessary. Consider spending some time with a thesaurus; if you're using a lot of adverbs, perhaps you'd be better served by using stronger verbs.
- Do not use the words "plaintiff," "appellant," or other, similar procedural phrases to describe any party. Briefing an appeal is about telling a story. It's your job to tell the court the whole story of the case in the limited (13,000!) words that you have. Even though replacing your client's four-word name would save space, resist the urge. I promise, what you're gaining in space, you're giving up in clarity.
- Do not use precise dates, unless you absolutely need it. The Court doesn't need to know that something happened on April 21, 2019, unless multiple events happened in April 2019. If you've got to describe a temporal relationship, try words like "later" or "before." Otherwise, just save the words and use the month or month and year.
These aren't all the ways to save space. But writing shorter, more coherent briefs is a mindset. You have to start somewhere.
Saturday, April 13, 2019
It is quiet and dark. The theater is hushed. James Bond skirts along the edge of a building as his enemy takes aim. Here in the audience, heart rates increase and palms sweat. I know this to be true because instead of enjoying the movie myself, I am measuring the brain activity of a dozen viewers. For me, excitement has a different source: I am watching a neural ballet in which a story line changes the activity of people’s brains.
That's from Paul Zak, founding Director of the Center for Neuroeconomics Studies. Recently, scientists strapped brain-scanning and other sensors to a group of test subjects and had them watch a Bond movie. The researchers wanted to see how people reacted physically and neurologically to a good story.
"When James Bond found himself in stressful situations--like hanging from a cliff or fighting a bad guy--the audience’s pulses raced. They sweated. Their attention focused." In other words, the subjects connected with the hero on a physiological level, experiencing what Bond was experiencing. And something else: the participant's brains synthesized a neurochemical called oxytocin.
Oxytocin's influential power on our minds is well-documented. And stories trigger it.
Take another study showing that when we read a story, the neural activity in our brain increases fivefold. Neuroscientists have a saying: “Neurons that fire together, wire together.” This increased activity, no doubt, makes it much more likely that readers will remember a story over some other random information.
Research shows that the mere act of reading a story changes how we think. In a 2011 study, participants read stories with strangers. The results? Storytelling, the researchers concluded, “fostered empathy, compassion, [and] tolerance.” Reading a cohesive story (of any kind) affects us. It makes information more palatable and more memorable. This is all piled on top of the long-standing cognitive science research showing that nearly all of our thinking is done by constructing story-like schemas and categories in our minds.
In short: research proves that storytelling engages readers, it burns information into their memories, and it forges the sort of close bonds that you need to persuade them. If anything, these powers are most important for lawyers. We legal writers are desperate to engage our readers--and to get them to care--amid the constant legal noise. Storytelling can cut through that noise and touch our readers on deep levels.
Legal storytelling is a field and art to itself, but I thought I would offer some core storytelling tools that you can easily incorporate into your legal writing.
1. Start with a movie-trailer paragraph.
Try taking a paragraph or two at the outset of your factual story to spool up a preview of the best scenes. If your fact section is the movie then this initial section is your movie-trailer. You will not only excite and engage your readers, but you'll lay out the basic storyline so they can better sort the details as they go (an important cognitive science tool).
The two tricks here are to (1) roadmap the basic storyline and theme ("this is a corporate bullying case") and to play a highlight reel of some of your best material to prime readers and get their emotions in the right place. I've seen good movie-trailers take up a few paragraphs or a few sentences. Take this one from a recent SCOTUS case--it doesn't get more simple or persuasive than this:
Justice Kagan is a fan of the movie trailer. Here she sets up the story in the Sherman case last term:
The thrust of the complaint is that plaintiff has worked at the defendant’s store for several years and repeatedly complained about sexual harassment. For example, he complained that his supervisor allegedly made comments about his ‘great stature.’ Eventually, the defendant acted, but by then, plaintiff alleged he had already been harassed so much that he quit.
Here's an example of a lawyer also adding some helpful roadmap to his trailer:
Three periods in plaintiff’s employment are relevant here. First, plaintiff offers allegations about when he was interviewed and how the defendant made promises to him then, like that he would be a foreman within six months. Second, plaintiff alleges that over the next six months, his job turned out to be a “glorified secretary…”
2. Uncover your familiar plot and highlight it.
We all know the good storylines: the underdog who defeats the bully, rags to riches, the do-gooder who is underestimated by everyone in town. We are hardwired to be moved by these storylines. The good news is that you can construct an emotional storyline out of just about any situation, if you look hard enough. Once you've distilled down your basic plot so that you can relate it in a sentence or two--highlight it at the outset of your story and throughout your brief.
Supreme Court high-flyer (and one of my favorite legal writers) Deepak Gupta gets the value of building a simple and emotional storyline at the outset. With these couple paragraphs, Gupta injects his factual theme, storyline, and the punchiest snippets of his factual story. In short, the big bad credit card companies are pulling the wool over innocent consumers' eyes--to the tune of billions:
Here's another example. This time, it's a story of vulture debt buyers looking to prey on the weak:
3. Deftly weave emotional facts into the story (even when they are not strictly relevant).
Legal readers hate reading facts that are obviously not relevant to the legal questions they are wrangling with. But if you insert those same facts into a cohesive story about the facts that do matter--your readers will never get wise. For example, Justice Kagan mentions in this snippet below how much the plaintiff spent on fees, even though this fact really had nothing to do with the legal questions presented to the court. But because this fact was weaved into the story about the background that was relevant--you'd never know:
We legal writers are often too specific about things that don’t matter. The problem is that when you give your readers a bunch of specific details without purpose, they get confused. They try to remember everything, not knowing what they'll need for the legal analysis later.
So cut dates, amounts, names, and any other details that won't help you win on the merits. Look how this federal district judge avoids inundating the reader with dates, page numbers, and needless details that other lawyers and judges love to squeeze in:
Late last year attorney Denton Jackson filed a chapter 13 bankruptcy case  for debtor Sarah O’Neill. Shortly after filing the case, Jackson filed a form fee application, Form No. 23. In the portion of the application entitled “Use of Model Retention Agreement,” Jackson checked the box indicating: “The attorney and the debtor(s) have entered into the Court’s Model Retention Agreement.” Some months later, chapter 13 trustee Thomas Lanner objected to Jackson’s application because the [Model Retention Agreement] between Jackson and the debtor . . . attached an “addendum” that prescribed fees in addition to the flat fee to which Jackson was entitled.
5. Try to tell a complete, cohesive story about any important factual events.
Make sure to tell a complete story--beginning, middle, and end--for any event that matters. Readers get skeptical when there are obvious plot holes. So answer natural narrative questions readers will likely have. Consider telling the story in a familiar arc:
setting > characters > complication/conflict > resolution (how they got to court)
This is a familiar and easy to understand format for readers (as a preview for later--you can use this same structure when telling stories about the rules, too).
Some other story elements to keep in mind:
- Consider whose perspective might be the best to follow as you deliver the facts. The defendant? The plaintiff? Some third party?
- Focus on people or entities when possible. Frame the story as actions they took out leading to the issues or dispute.
- Provide your reader with helpful context to set up those important factual events. How did the plaintiff and defendant come to meet? Why were they where they were that night? You don’t want to lose your reader in irrelevant details, but if some factual events are critical, it will be much easier for your reader if you set the scene first.
Here's some nice scene-setting about why there are so few debt-buying firms, which sets up the critical factual events in the case:
Here's a great example of a lawyer telling the whole story and paying attention to familiar story elements:
Here's another cohesive story. Notice how the lawyer keeps the facts in the perspective of the entities, not abstracts. Note also the editorials about what the entities were thinking at the time:
Defendant Oztark co. launched it’s company last year to help individuals who want to charter a private plane. It filled out its corporate paperwork with the state of Delaware, but it forgot to send in a check to cover the corporate registration fee. Delaware, in turn, sent its request for payments to the wrong address—so Oztark never realized it’s mistake. Oztark then started providing services, not realizing that it was effectively not a legal corporation . . .
Here's an example of some scene setting that lays out how different parties relate to each other. Is it all legally relevant? Probably not. But it sure helps keep the story straight:
6. Share specific details that make a point (rather than telling your reader why they matter).
This is a classic and always important: Use choice details to lead your readers to the emotions and images you want, don't just tell them what matters.
So instead of telling your reader that “plaintiff was severely and permanently injured” share the specific details: “Plaintiff’s hips were both broken.”
But choose specific details with care. Juicy details will build imagery in your reader’s mind, making the story come to life. And if you choose the wrong details you might lose control.
7. Use tools to emphasize the good facts.
Emphasize the best facts by describing them with the best style. Imagery-laden, vibrant, and pithy writing is memorable. And using this sort of writing when talking about the good facts will make them stick.
You can emphasize key facts by placing them in positions of emphasis like the beginning and endings of paragraphs, the beginning or end of sections, and the ending of sentences. You can also emphasize these facts by repeating them subtly, say, in your introduction, in your fact headings, in your movie-trailer section, and in your conclusions.
Another important way to emphasize key facts is to tell a more detailed story about them. The more details and time you spend setting up a factual event, the more it will be emphasized for your reader. Justice Kagan gets it here, as she spends two paragraphs revealing every detail leading up to the critical event of the banner being unfurled:
Respondent Joseph Frederick, a senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates.
Then came the incident we are concerned with here. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14–foot banner bearing the phrase: “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street.” - Morse v. Frederick, 551 U.S. 393 (modified)
8. Use the first sentence of fact paragraphs to persuasively frame and prime.
Like I mentioned recently in "The Strength of the Start," first sentences are powerful. Use the first sentences of your fact paragraphs to set up the persuasive pitch for all the facts that come after. Gupta does just that here:
9. Use your own voice and narration whenever possible.
Any good storyteller will tell you that half of this art is in the voice: the power, the pauses, the pitch. For writers, this is tricky, because you must craft a "written voice." One of the big pitfalls here is to let fact quotes drown out your own narration. So consider using some of my prior pointers about quoting here, and keep other people's voices to a minimum. Check out how (yes again) Gupta keeps quotes to a minimum while maintaining his own narrative tone throughout:
Defang unhelpful facts by surrounding them with helpful facts (the "halo"), by placing them in the middle of paragraphs, by not repeating them, and by sharing less detail or spending less time exploring their nuances.
But top lawyers will all agree that you should not ignore the bad facts that the other side is sure to raise. That just makes them that more powerful in the other side's hands. But here is an example of an attorney deftly putting bad facts into context. Instead of saying: "Defendant admits he punched the plaintiff in the face," the lawyer says:
Defendant is a nurse. He has never done anything violent. He was being beaten from three sides and—to save his own life—flailed and made contact with one of the assailants in the face. There were no injuries.
11. Use headings to separate the story's different scenes.
This may be the most helpful fact tool: separate different factual events with headings so that your readers can keep track. Good headings also allow you to help your reader understand what matters from each section.
For example, this lawyer plucks out the key facts about how long it took to file a motion:
A. The plaintiff waited to file the motion until three months after receiving documents.
Here's another Gupta example of headings that preview key facts and help readers keep track of all the different parts of a single, cohesive story:
12. Telling the rules' story.
One of the most powerful stories is a type you might not think about: Rule stories.
Really, every rule is a story. Whether it be a statute, a common law principle, or the reasoning of a court case. Some situation or circumstance gave birth to the rule. The rule grew over time--changed, expanded. Perhaps it matured into a more flexible version of itself, benefiting from the wisdom of experience. Or maybe it became strict and unyielding after too many litigants took advantage of it.
There is a lot of magic to explore here. For one, when you have a critical rule interpretation that may make or break your brief--telling the rule's life story can be the most memorable, engaging, and persuasive tool in your belt. Rule stories just beg to be read.
Most legal writers would introduce a rule like this:
The Free Exercise Clause does not exempt religious persons from laws of general applicability. Employment Division v. Smith, 494 U.S. 872 (1990).
Once your reader absorbs your rule's story, it will be hard for them to shake. The other side's surface interpretation of the rule will ring hollow.
Another power of the rule story is that it gives you flexibility. Root around long enough in any rule's past, and you'll find some skeletons. Perhaps a shotty case that caused a twist in the law that never should have been there. Or some assumptions or factual circumstances that suggest an entirely different purpose animated the rule than what you might expect. You can take more liberty when interpreting rules as a storyteller rather than a scrivener.
Joe Regalia teaches at Loyola University School of Law and practices at King & Spalding LLP in Chicago. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here.
Tuesday, April 9, 2019
In a previous post, I introduced the legal-writing toolbox. I described seven resources that make up the “practical” library in my toolbox. In the comments section, several readers shared the top books in their toolboxes too.
Today, I examine some additional tools I use as a writer. Again, I welcome your contributions in the comments section. I look forward to learning more from you.
The inspiration for an argument or article often strikes in the cereal aisle of the grocery store. For years, I thought, “That’s a pretty good idea. I’ll add that to my document tomorrow.” Then, when I sat down to write, I could not remember the epiphany that had befallen me in front of the Cheerios. This happened quite frequently. Now, I carry a small journal and pen with me wherever I go. I capture ideas in my journal as they come.
Electronic Writing Bank
I use Microsoft Word and a PC to write. Throughout the years, I have amassed an electronic collection of my own writing. In practice, I had templates for the various courts in which I practiced. I saved correspondence, pleadings, and “standard” legal language for certain sections of my briefs, like standards of review. As a professor, I have gone back to my storehouse and given my students some of my writing to edit. They enjoy finding mistakes in their teacher’s work.
As a professor, I am still collecting my writing in an electronic bank, keeping it safe and secure. I have developed an organizational system, using electronic folders and file names that allow me to find what I needed quickly. Periodically, I clean out my collection and delete material I no longer need.
I know enough technology to survive in the digital age. I’m sure I do some things the hard way, technologically, but it’s likely the only way I know how. Here are a few of the “tech tools” in my writer’s toolbox, which may or may not be new to you.
First, I remove metadata from my documents before I share them with someone. When you create a file, potentially identifiable information (metadata) is automatically stored in the properties of the file. Metadata includes information about who created the file, who made changes to the document and when, and the changes made. The easiest way I “remove” metadata is by converting my Word document to a PDF. It is my understanding that a viewer cannot mine a PDF document for the same metadata found in a Word document.
When I am collaborating on a Word document, and cannot share it as a PDF, I often strip the document of its metadata before I send it. If you would like instructions on how to remove metadata from a Microsoft Word document, click here.
Second, one feature I appreciate in Word is the ability to link numbers within a document through the cross-reference function. Cross-references link numerical references within a document so that if you change the numbering system, Microsoft Word will update all the linked numbers. I find cross-references to be helpful in linking footnotes in law review articles, provisions in contracts, and paragraphs in pleadings.
For example, if I am drafting a settlement agreement with various numbered paragraphs, some of the numbered provisions will likely reference earlier numbered provisions. If I want to add a numbered provision in the middle of the agreement, all of my numbers after the newly-added provision will have to change. If I change the numbers by hand, I will have to devote several minutes to making the changes and I risk missing a provision and having a mistake in my agreement. To avoid this problem, I use cross-references to link my numbers. Then, when I make a change, the cross-reference function updates the numbered references in a few seconds and the software does not miss any of the numbers, reducing errors. For instructions on how to create cross-references in a document, click here.
Finally, when I don’t know how to do something in Word, I Google it. Individuals far smarter than I have created step-by-step instructions or videos on how to complete tasks that make writing easier in Word. When I search, I describe the task I want to complete along with the version of Microsoft Word that I am using because the instructions may change depending upon the age of my software.
Saturday, April 6, 2019
Many practitioners, it seems, view the "issues on appeal" section of their brief as a waste of space. I don't know that for sure. But it seems likely given the slapdash way many of those sections are composed.
I'm going to assume everyone knows that this issue statement is no good: Did the trial court err in awarding summary judgment? It is my least favorite issue statement of all time. If you find yourself writing this issue statement; stop. It's not the answer.
What I'm talking about are those issue statements that do a sufficient job of alerting the court to the central issue in the case, but that don't go far enough. Here's a perfect example that I found after five minutes on the North Carolina Court of Appeals' website:
WHETHER THE FULL COMMISSION ERRED IN AWARDING ATTORNEY'S FEES PURSUANT TO N.C. GEN. STAT. § 97- 88?
There's not a lot of substance to unpack here. I know from reading question that the appellant claims the North Carolina Industrial Commission erred when it awarded attorney's fees. And I know the relevant statute. In that regard, this issue statement does its job just fine.
But it could do so much more. First, it needs more information. Second, it needs some emotional appeal. Shifting gears and heading into the world of contract law, let's build an issue statement that both does its job and does it well.
Here's some background. The plaintiff brought a breach of contract claim against the defendant, who contends that the claim is barred by a release. The plaintiff has admitted elsewhere that the release is valid. The trial court concluded the claim was barred and dismissed the case. The plaintiff has appealed.
The defendant's most basic issue statement would read something like this:
Did the trial court correctly dismiss plaintiff's breach of contract claim?
As before, this statement tells the court what's at issue and what the defendant's position is on it. It just doesn't do anything else. To give the court some extra information, the defendant might consider:
Did the trial court correctly dismiss plaintiff's breach of contract claim after concluding it is barred by the release?
In this iteration, the defendant has again conveyed to the court the issue and the defendant's position on that issue. By noting the release, the defendant also has conveyed the trial court's reasoning. Still, this issue statement is missing something. It tells the court what's going on, but it doesn't persuade. It lacks emotional appeal. For some real pizazz, the defendant might consider crafting an issue statement that goes one step farther:
Did the trial court correctly dismiss plaintiff's breach of contract claim when that claim pre-dates an admittedly valid release?
This statement goes all in. It tells the appellate court what the trial court did, but more importantly, it tells the appellate court why the trial court was right. That is, why the defendant should win.
The question has an important feature that its predecessors lack: its answer is "yes." Writing an issue statement so that it must be answered "yes" goes a long way to bolster your case. It gets the court thinking about the facts and the law in the light most favorable to your client. And it does so early. By writing an issue statement with a clear answer, you're ensuring that the court will see the case through your eyes early on. That's a huge advantage, especially if you're the appellant.
So, next time you sit down to write an issue statement, resist the urge to recycle your old standby and spend some time crafting a quality question that the court can't help but answer in your favor.
Monday, April 1, 2019
If you weren't a fan before "On the Basis of Sex" was released in December 2018, or before the RBG documentary came out in May 2018, or before My Own Words was published in October 2016, by now we all know how Ruth Bader Ginsburg did it. As explained here, she started from zero, when the Supreme Court had never invalidated any type of sex-based law, and had rejected every challenge to laws treating men and women differently. "By carving out incremental spaces for women (and men), over time Ginsburg established a bedrock of precedent that legal minds still reference in the fight for equality." One case at a time, she managed to change the court's perspective on sex discrimination: "Ginsburg’s precedents were compounding, as she helped American law move toward a world in which gender was no excuse for treating people differently."
A dear friend and colleague who works exclusively in the juvenile court system here in Missouri recently asked me to join her on her quest to follow the RBG Method in termination of parental rights cases. I thought well, Justice Ginsburg was once upon a time an attorney with a strategy. Here's the plan; apply it as you see fit.
I. Identify a current law, the prevailing interpretation of which you want to change.
Termination of Parental Rights in Missouri is purely statutory. The statute itself is long, complicated, and detailed. One of the following grounds for termination without consent of the parent must be proved by "clear, cogent and convincing evidence": (1) abandonment; (2) abuse or neglect; (3) the child has been under the jurisdiction of the juvenile court for at least one year, and the conditions which led to the assumption of jurisdiction still persist; (4) the parent is guilty of a felony violation in which the child or any other child in the family was a victim; (5) the child was conceived as a result of rape; or (6) the parent is unfit to be a party to the "parent-child relationship." Each of these grounds requires a showing of specific facts and circumstances that constitute "clear, cogent and convincing evidence." Second, the statute requires proof by a preponderance of the evidence that termination is "in the best interests of the child." Given this level of detail and box-checking involved, your average bear might think that TPR cases leave little room for judicial discretion, and require strict and literal compliance with the statute.
But in 2016, the Jackson County, Missouri Family Court developed a problem. In the years 2010 through 2015, an average of 138 new termination of parental rights cases were filed. In 2016, that number jumped to 449, because "in the Fall of 2015, the Juvenile Officer identified a number of cases with a goal of TPR lacking a petition for termination. A special work plan was constructed and these cases were filed in 2016, resulting in an unusually high number of TPR petitions filed." In 2017, 369 new TPR cases were filed, down by 80 from the prior year, but still over 2.5 times the average of the six years prior to 2016. In August 2016, the Family Court Division of Jackson County issued an administrative order implementing a case management system for TPR cases, "to create a more efficient, predictable system in order to achieve more timely case dispositions, reduced waiting times and more meaningful appearances for litigants, attorneys, and the Court, thereby promoting the timely administration of justice." The new system requires that a Permanency Hearing take place within 12 months of the child coming under the court's jurisdiction, where the court may determine whether the Children's Division provided a compelling reason that a TPR petition is not in the best interests of the child. A post-permanency plan review hearing must be held no later than six months after the Permanency Hearing, and if the court determines that the permanency plan is termination of parental rights, the court "shall order the Juvenile Officer or Children's Division to file a Petition for Termination of Parental Rights" within 90 days. Then, the case must be docketed no later than 30 days after the TPR Petition is filed; and the court may appoint an attorney to a party who is financially unable to hire an attorney. If TPR is contested, the case will be scheduled "for final trial/disposition within nine months after the case is transferred. . . ." No continuances shall be granted "except for compelling cause."
The end result of this new efficient case management system, according to my colleague, is a TPR Factory. Cases are rushed through the court system, and Judgments more often than not terminate parents' rights, but without proof of grounds by "clear and convincing evidence," and without proof by a preponderance of the evidence that termination of a parent's rights is in the best interests of the child. So, how to fix it?
II. Find a case with really good facts that emphasize the inherent merit in your argument, and bring them to the appellate court's attention.
If a parent has abandoned a child, that parent may repent his or her abandonment, which is determined by a parent's intent, which in turn is decided by the court's review of "actual or attempted exercise of parental rights and performance of parental duties following the abandonment." However, I have yet to find any recent TPR cases, where the court examined the parent's behavior both prior to and after the filing of the TPR Petition, and determined that the parent's rights should not be terminated because the parent has "repented his or her abandonment." Rather, the trial courts appear to consider behavior that occurred after the Petition was filed as "token" efforts, and view "after the fact" correspondences between the parent and child "with great hesitancy." My colleague seeks to change this interpretation of the statute, which she believes permits courts to terminate parents' rights without clear, cogent, and convincing evidence.
V. W. spent many years in active drug addiction, and did not deny that she had previously abandoned her child, who was taken into custody at birth when he tested positive for illegal substances. After the child was taken into custody, V.W. never provided any financial support for the child, and the court entered a no-contact order. After the TPR petition was filed, V.W. found out she was pregnant again, and decided that to turn her life around. Over the next two years, V.W. participated in every service offered to her, stopped using drugs, moved into a halfway house, finished her education, got a job working in the addiction field, and gave birth to and parented the second child. No witnesses at trial recommended termination regarding the first child; but her rights were terminated regardless. On appeal, the Court of Appeals found among other things, V.W. had not repented her abandonment, because the evidence showed only "short-term improvements" which occurred after the filing of the termination petition.
We lost that one.
III. Find a case with even better facts and try again.
J.C. had not participated in the case when his child first came under the juvenile court's jurisdiction. He became involved in the case five months before the TPR Petition was filed. Per the social services plan, J.C. attended and completed a batterer's intervention course, paid child support, and visited the child regularly. He found employment and an appropriate place to live, and again no witnesses testified that his rights should have been terminated. Nevertheless, the court found that because "almost all of the father's actions that might lend some support to a finding that he has repented his earlier abandonment of the child have come after" the petition was filed; these actions deserved “little weight." The trial court terminated J.C.'s rights.
We filed the brief in that appeal last month. Hopefully, maybe this time with slightly different facts--the main difference in this case being the father's payment of child support and visits with the child--the court of appeals will see the worthiness of our argument that a parent's efforts to repent abandonment after the Petition is filed, should not be automatically viewed as token efforts deserving of little weight in a court's decision to terminate a parent's rights. Interestingly, my colleague was chatting with an appellate judge recently, who told her that he just didn't see very many TPR appeals.
What that tells me, is that a court's traditional understanding of a legal issue will change only if someone challenges the validity of that traditional understanding. We know that the Supreme Court just hadn't considered that gender-based discrimination was wrong, so one case at a time, Ruth Bader Ginsburg methodically changed that thinking. We may not be arguing in front of the Supreme Court, but here in this pond, my fellow fish and I are working towards the appellate court's coming around to the idea that perhaps there is something wrong with the way this state determines whether and when parents should lose their parental rights.
The viewpoint is perhaps idealistic, but the goal feels possibly reachable. Tally-ho.
Tuesday, March 26, 2019
Social media is an interesting experiment. Because of my diverse legal background, I am friends with people who identify with viewpoints from every shade of the political and social spectrum, and I usually enjoy hearing these different perspectives on issues and try to learn from them. But as time passes, I see fewer shades and more rigid, black-and-white positions. There is less thoughtful sharing and more knee-jerk accusation.
This way of thinking in terms of "us" versus "them" is by no means new, but it does seem to be increasingly fortified in our public and private discussions from everything to politics to how we view history. Just try to take a thoughtful, nuanced position on anything from immigration to Civil War monuments (or anything relating to Donald Trump), and you'll quickly see my point.
Perhaps no other profession is as deeply grounded in this adversarial perspective as the law. The idea is reinforced in every filing and letter through the use of a simple "v." Indeed, our modern system has roots in an older system that permitted litigants to hire champions who would bludgeon each other to death or submission to prove their case. Russel, M.J., Trial by Battle Procedure in Writs of Right and Criminal Appeals, 51 Law and History Review 123–134 (1983).
When I serve as counsel, I do so aggressively and make every proper effort to prevail over the party who is "versus" my client. But we have become more civilized over the years in how that process works. Today, lawyers who demonize the other party, or who buy into the "hired gun" mentality and choose to vilify their counsel, are serving neither their clients, themselves, the legal system, or their society.
I serve as, and alongside, trial counsel in small and in multi-million dollar cases as both defense and plaintiff's trial counsel and as appellate counsel. In doing so, I often see the harm that arises from the refusal to see the other side's perspective. We must be zealous advocates as attorneys, but to be effective means we must have a willingness to see the "us" in the other side.
Last week I wrote about the costs of contentious litigation in terms of economic loss and gain, and its impact on credibility. But demonizing our opponents also puts on blinders. What if the claimants aren't just money hungry but are actually injured or their business has been genuinely impacted? What if the defendants really did not intend any of the harm they caused, but did their best to avoid it? What if someone or something else was to blame? What if the failure to disclose or produce important documents by opposing counsel really was a mistake?
Turning opposing counsel or parties into villains means we might not ask these questions, because we assume the answer. If we don't assume the worst, if we are willing to put ourselves in the other side's shoes, if we can see "them" as "us," then we can see more adequately the dangers in our own case and the merits in the other side's position. As a result, we can more appropriately plead and argue our cases, we can more accurately evaluate and forecast outcomes, and we can more readily reach long-term solutions for our clients rather than simply trying to "win" each individual point of contention.
I would also note that, as attorneys, it is particularly important for us to remember that our personal opinions about opposing counsel or their client must be kept to ourselves. We often forget about it, but Rule 3.4(e) of the Model Rules of Professional Conduct states that a lawyer shall not:
in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused[.]
Aside from raising disciplinary issues, violating this rule can harm our clients. In one Florida car wreck case, trial counsel argued that that the defense did not want the jury to be fair and reasonable, but had instead brought a "bogus counterclaim to make it look like they have something to argue about," and that, in contrast to the defense witnesses, his client was not going to lie. Airport Rent-A-Center Car, Inc. v. Lewis, 701 So. 2nd 893, 896 (Fla. Dist. Ct. App. 1987). On appeal, the court concluded that the defendant was denied a fair trial and reversed the award.
Of course, that means that this tactic worked at trial. Sometimes, you can bludgeon your opponent into submission by demonizing them. At least temporarily. But the costs continue to accumulate personally, professionally, and systemically. And that system is increasingly aware of the problem and fighting back. If you have this tendency, you should fight it back as well.
(Image source: "Single Combat to be decided by the judgement of God." From a miniature in the "Conqêtes de Charlemagne," a Manuscript of the Fifteenth Century, in the National Library of Paris. Internet Archive Book Images/Wikimedia Commons/No Restrictions)
Monday, March 25, 2019
The following is a guest post by Prof. Teri McMurtry-Chubb, Professor of Law at Mercer University School of Law.
On Friday, February 17, 1978 the Chelsea Chapter of the N.Y. Committee to Overturn the Bakke Decision (NYCOBD) met to strategize how best to influence the Supreme Court decision in Regents of the University of California v. Bakke. The purpose of the meeting was to strategize under the banner of the National Committee to Overturn the Bakke Decision (NCOBD) as it planned a unified “March on Washington” in protest. In keeping with the call to arms espoused by its sister chapters throughout the United States, Chelsea NYCOBD boldly stated in its meeting flier:
Fight Racist Attacks on Affirmative Action Programs!
In the spring, the U.S. Supreme Court will render a decision on the Bakke case – one of the most important cases in the last 25 years on the question of racial equality. The Bakke decision, which is based on the absurd and racist idea of “reverse discrimination,” is a serious attack on the rights of minorities to jobs and education. If the Bakke decision is not overturned by the court, affirmative action programs for minorities and women will be threatened with elimination. Join the growing anti-Bakke movement in our demands to: implement, maintain, and expand special admissions and other essential affirmative action programs for minorities and women at all levels of higher education and employment. Fight Racism. Overturn the Bakke Decision!
Although the NCOBD was not successful in overturning the decision, its act of grassroots organizing and educating the public is a primer on the importance of education to informed direct action. 41 years later, our contested, national conversation about affirmative action has continued with the Harvard Affirmative Action Case and the College Cheating Scandal. The scandal has caused us to (again) pause and ponder what is an elite education, who “earns” admission to America’s most prestigious educational institutions, and who deserves access to the America Dream. However, what about the lawyers who litigate these cases? Have you ever considered the views they hold about affirmative action in admissions and how their beliefs shape their discussions about the litigants and the arguments in their briefs that will ultimately become part of the jurisprudential landscape of affirmative action law?
This question, the question of how bias shapes lawyer analytical and reasoning processes, is the subject of a 6-year empirical research study I conducted involving student motion and appellate briefs generated from case files involving social justice issues. The study examines 576 brief submissions from 192 students on topics ranging from hostile work environment claims based on colorism, religion, and national origin to LGBTQIA students’ right to freedom of expressive association in creating the policies for their student organizations. I wanted to know if law student biases concerning race, gender, class, and sexuality colored their analytical and reasoning processes as they drafted the argument sections of their briefs, and if so to what extent. The focus of one of the case files (the universe in which students litigate) was an African American man ranked in the 75th percentile of all law school applicants who was denied admission to law school, even when White legacy students were admitted despite being consistently ranked in the lower 25th percentile of all applicants. The claimant sued the University on grounds that the law school’s legacy admissions policy was an unconstitutional affirmative action program - he argued that a White student “took his seat” in the 1L class. The Bakke case and its progeny were the controlling authority.
Student attitudes about colorblindness led approximately 85% of them to make legal arguments flawed by bias in the first drafts of their briefs. For example, students representing the claimant analyzed his racial classification, “African American,” when the race of the legacy admits, “White,” was the racial classification at issue in the lawsuit. Student arguments advanced the notion of color-blindness or the phenomenon of “not seeing color.” Moreover, students representing the University argued for diversity as a compelling state interest even though the legacy admissions policy favored White applicants over applicants of color - a losing proposition for the University. Simply, they could only see race or ethnicity as anything other than White. These arguments based on biased assumptions led students to make arguments that were incorrect and inconsistent with the major tenets of the Bakke decision, and ultimately contrary to their client’s interests.
The good news is that with critical pedagogical interventions, teaching methods aimed at problematizing students’ biased assumptions, students course corrected their attitudes from color-blind to color-conscious. Approximately 82% of all student final appellate brief submissions, the final assignment submitted by students in the study, evidenced a critical engagement with issues of race and class in higher education admissions policies. Students made arguments that recognized “White” as a racial category of analysis in affirmative action jurisprudence, “legacy” as a function of class hierarchy, and the connection between the two. Most importantly, students continued to engage with each other and their peers around these issues after their time in the study ended.
Law firms, public interest and government agencies should note that unless their attorneys have been taught to recognize and disrupt their biases with respect to race, class, gender, and sexuality, it is probable that they will replicate these biases as they interpret the law and develop the analytical frameworks in their briefs. A heart for justice does not necessarily mean that lawyers will do justice. Rather, it is imperative that legal educators and the bar actively implement interventions to make attorneys aware of how their arguments replicate structural and societal inequities. We can do no less if our expectation is that attorneys serve their clients with excellence and an eye toward equity. You can read a detailed analysis of the study in my article The Practical Implications of Unexamined Assumptions: Disrupting Flawed Legal Arguments to Advance the Cause of Justice, 58 Washburn Law Journal ____ (forthcoming 2019).
Wednesday, March 13, 2019
Writing a good statement of the case is a lot like walking a tightrope in the wind. There is such a fine balance involved in providing the court with an understanding of how a case arrived before it, explaining what happened, ethically disclosing all relevant information, and zealously advocating for your position. A statement of the case includes both the procedural history of the case itself, and the factual history forming the basis of the legal issues before the court. And, herein, lies the beginning of the balancing act. I certainly adhere to ideas that we lead with our most affirmative statements, that readers remember the first and last things they read, and that we can minimize the impact of unfavorable facts simply by tucking them in the middle of a sentence or a paragraph. I advocate strongly for the purposeful use of passive voice to further distance yourself from negative facts. I have read briefs where every sentence, and every paragraph, has been drafted with maximum persuasive impact in mind. I certainly applaud the diligence of the authors of these briefs, and understand the desire to take advantage of every opportunity to persuade. I also note that reading such statements of the case can be exhausting.
To me, reading such briefs is like riding a bicycle uphill… all the time. I need to coast from time to time. A well-balanced statement of facts allows for both the emotional appeal, and the opportunity to coast through basic information. For instance, that a complaint was filed or even when it was filed may be presented fairly neutrally without undermining the general persuasiveness of the statement. In addition, I often suggest to my students that they separate descriptions of places, things, and sometimes people, from the story itself. These descriptive paragraphs help to orient the reader and can give the reader a moment to coast before embarking on what will hopefully become a very compelling journey. I believe that such information can be shared in a fairly neutral fashion without undermining persuasive impact.
I also, however, offer words of caution. Do not begin a story, and then abruptly stop the telling in order to describe a person, place, or thing. Just as you have your reader picturing the car stuck on the train track, and hearing the train whistle approaching, do not interrupt the reader in order to describe the town in which the impending collision is likely to occur, or the restaurant in which the lone witness sat. Describe the town first, so the reader better pictures the events happening. Bolster testimony, after you’ve completed the story, by showing the reader what a great vantage point the witness had. By being mindful of where you place the descriptions, you protect the reader from jarring interruptions.
By separating descriptions from the story itself, and by relegating mundane information to its rightful neutral place, you will vary the cadence of story itself. This variety will make your statement of the case more persuasive as you give your reader an opportunity to relax and absorb the impact of the story itself.
Tuesday, March 12, 2019
As lawyers, we work in words. In “The Simple Secrets for Writing a Killer Brief,” Daniel Karon encourages us to have a “writer’s toolbox.” In his article, Mr. Karon lists the books in his toolbox, which he describes as "a modest but functioning writing library."
While I also have a "modest but functioning writing library," I use more than books to help me write. Over the next several posts, I will explore different facets of my writer’s toolbox. I will describe my electronic writing bank, writing journal, and tech tools.
Today, I focus on my writer's library.
I have shelves full of books on writing. Some of these books, if I’m honest, I never open. Others are well-worn with use. Below are some of my favorite writing resources:
Aspen Handbook for Legal Writers - A Practical Reference by Deborah E. Bouchoux [ISBN: 9781454889335]
This book does more than list grammar rules. It provides writing and proofreading tips specifically for legal writing. I like that it incorporates legal-citation rules for capitalization and abbreviations along with the grammar mechanics. The index is thorough and helps me quickly locate what I need in the text.
Plain English for Lawyers by Richard C. Wydick & Amy E. Sloan [ISBN: 978-1-5310-0699-0]
This is my "Strunk and White" for legal writing. It is a simple, short, and straightforward guide to writing well. Read this book. Implement its suggestions. You will become a better writer.
The Bluebook - A Uniform System of Citation (20th Edition) compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Review [ISBN 978-0-692-40019-7]
My clerkship with the Pennsylvania Supreme Court taught me that judges care about citation. Judges are meticulous about citation in their writing and respect attorneys who are as well.
I cut through the massive amount of rules in The Bluebook by using the "Quick Reference" section on the back cover, the Bluepages, and index. I tab pages for rules on cases, statutes, quotations, and abbreviations.
The Bluebook Uncovered: A Practical Guide to Mastering Legal Citation by Dionne E. Anthon [ISBN: 9781634595377}
This book translates The Bluebook into understandable English. It helped me comprehend some of the more complicated, convoluted citation rules. When I have a citation question, I consult this book first.
A Practical Guide to Legal Writing and Legal Method by John C. Dernbach, Richard V. Singleton II, Catherine S. Wharton, Catherine J. Wasson, and Joan M. Ruhtenberg [ISBN: 9781454889359]
This book provides step-by-step instructions for every part of the brief-writing process. It is direct and easy to understand. Each chapter contains numerous examples.
Just Briefs by Laurel Currie Oates, Anne Enquist, and Connie Krontz [ISBN: 9781454805540]
This is a great resource on persuasion. It explains how to engage the court through effective advocacy. The critiquing checklists for each section of a brief are invaluable.
My final go-to reference is an app. I use both the dictionary and thesaurus features.
What's in your writer's library?
Please share your favorite resources in the comments section. I would enjoy hearing and learning from you.
Tuesday, March 5, 2019
There are times when we, as advocates, must argue for a change in the law. Going into the case, we know that the law, as it exists, is against our clients. Our job in those cases is to be candid and admit this, and then argue that this law must be changed. To do so, we need to examine the history and reasoning behind the law, look for allies who might have questioned it in the past, and not feel tied to earlier justifications that may have lost their appeal over time. Our job is made easier when that work reveals that the law has become unmoored from the reasons that justified its genesis.
Civil forfeiture – the idea that the state can take any item arguably involved in the commission of a crime, regardless of the fault of the owner – is one such area of the law. The Supreme Court recently ruled that state civil forfeiture awards are subject to constitutional challenge under the excessive fines clause of the Eighth Amendment. Timbs v. Indiana, No. 17-1091, 2019 WL 691578 (Feb. 20, 2019). But there is a bigger problem with civil forfeiture: it has lost its connection to historical justifications.
Justice Thomas raised this concern when he issued a statement on denial of certiorari in Leonard v. State of Texas, 137 S.Ct. 847 (2017) (mem.). After briefly analyzing the origins of the law, he concluded that “[w]hether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail.”
A brief look at the historical foundations of modern civil forfeiture statutes reveals how badly they totter when asked to support the modern practice. For instance, the Bible is often cited as a source for the law, where, in Exodus 21:28, it is said that “if an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable.” However, even a cursory look at this passage reveals no mandate that the state gets to eat the ox. Rather, this verse stands for the principle that if an animal causes unexpected injury, only it should bear the cost and no one should profit from the resulting death. This is also in accord with the Talmudic interpretation.
Sometimes, ancient Greek law is quoted, where inanimate things that cause death were cast out beyond the borders. Other times, ancient practices with impressive sounding names like “deodand,” “wergild,” and “bane” are cited. But in each case where early examples are found, the ancient practice is distinguishable. It was only in the English common law that something similar to our current American systems was found, and then only because the state replaced the church as the beneficiary of the proceeds of sale of an item (or ship) that caused injury, largely because it could. When we adopted that common law, this practice found its way into our legal system. The fact that Great Britain later discarded the practice when it adopted wrongful death actions providing for recovery directly to the victim’s family (at the urging of railroad companies alarmed at the potential for loss) apparently went unnoticed.
Oliver Wendell Holmes, Jr, noted that, in 1881, this was already a very common and recognizable phenomena in the development of the law:
The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.
After analyzing this growth and the history of civil forfeiture, in particular, he had this to say:
The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view.
Oliver Wendell Holmes, Jr., The Common Law, chapter 1 (1881).
And yet, almost 100 years later, the Supreme Court cited the passage in Exodus, the law of deodand, and Holmes’ discussion of other historical antecedents in concluding that a civil forfeiture statute that permitted the forfeiture of a yacht without first proving the guilt of the owner was constitutional, largely because it was ancient. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680–686 (1974). No mention was made of Holmes’ conclusion that this historical analysis gave no real support for modern civil forfeiture.
Not surprisingly, a long catalogue of abuses followed.
In Tenaha, Texas, while Jennifer Boatright and her children rode through town on their way to buy a used car, she has stopped by the police for driving too long in the passing lane. When the police found the cash she was carrying to buy the new car, they took it. At the station, Boatright was given the option of forfeiting the cash and being released without charge, or going to jail for suspected money laundering and child endangerment, while her children were taken by CPS. She chose to keep her children.
In Emporia, Virginia, when Victor Ramos Guzman was stopped for speeding, the officers searched his vehicle and found $28,000 in cash. The driver was a Pentecostal Church secretary from El Salvador, who explained (and later proved) that he was taking the money - donated by parishioners - to buy a parcel of land. Although no contraband was discovered, the money was seized.
In Philadelphia, a couple's home was seized after their son was arrested for making a $40 drug deal inside.
More recently, Tyson Timbs was arrested in Indiana for selling less than $400 worth of heroin. Although the maximum fine for his offense was $10,000, the police opted to seize his $42,000 Land Rover, bought with insurance proceeds from his father's death. This was the case that eventually rose to the Supreme Court.
These and other cases are often referred to as examples of “policing for profit.” The catalog of abuses is impressive, and the effect is disproportionately felt by the poor, who often cannot afford to challenge the seizures. These statutes are far removed from the original idea that no one should profit when an animal or inanimate object causes a death. And yet there are still efforts to justify these actions by referencing their ancient antecedents.
Civil forfeiture statutes are an important tool for law enforcement departments faced with sophisticated drug operations transporting drugs and laundered cash across the country. Reform efforts requiring guilt on the part of the owner and limitations on police department spending have helped rein them in. But they must also be tempered by constitutional concerns, no matter what ancient civilizations may have to say (or not say) on the subject.
Holmes’ reasoned that “[t]he history of what the law has been is necessary to the knowledge of what the law is.” This history is also important to understanding what the law should be. The historical supports given for civil forfeiture statutes do not bear the weight of many modern civil forfeiture schemes. It should not have taken us this long to figure that out, given an honest review of their history.
(Image credits: "Trial of a sow and pigs at Lavegny" from Chambers Book of Days (1864). According to the book, “Among trials of individual animals for special acts of turpitude, one of the most amusing was that of a sow and her six young ones, at Lavegny, in 1457, on a charge of their having murdered and partly eaten a child. … The sow was found guilty and condemned to death; but the pigs were acquitted on account of their youth, the bad example of their mother, and the absence of direct proof as to their having been concerned in the eating of the child.”)
Tuesday, February 26, 2019
Occasionally, there is no binding precedent for an issue. The appellate courts in a jurisdiction have not addressed the issue, and courts outside the jurisdiction have adopted differing rules. After reviewing the different rules, you may prefer one rule over another because it leads to a more favorable outcome. Before you can argue how this rule applies to your case in your brief, you must convince the court to adopt the rule you prefer. At Commonwealth Law, the legal writing professors refer to this as “the battle of the rules.”
I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school. Initially, the issue intimidated me because it felt different from the analysis I had been taught. As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.
Battle Strategy #1: Help the Court Understand Its Options.
You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer. These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue. It is better to start by explaining that there is no binding precedent on the issue. Then, provide a brief description of the different rules available based on persuasive precedent. Educate the court on rule A and rule B, even if you want the court to adopt rule B.
Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.
To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule. Rule B may be more easily applied by law enforcement officers in the field. Rule B may align with policies foundational to the area of the law, such as torts or contracts. Also, argue why the other rule, rule A, is not a good choice. Rule A may open the floodgates to litigation and clog court dockets. Rule A may place an onerous burden on a segment of the population. The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.
Battle Strategy #3: Anchor Your Argument in Authority.
When asking a court to wade into uncharted waters, provide the security of authority. Cite to courts that have adopted the preferred rule. Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend. If some states have enacted statutes or regulations similar to the preferred rule, cite to them. It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law. For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights. Finally, secondary sources may lend support for your arguments. Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.
Battle Strategy #4: Use CRAC to Organize.
Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument.
First, state the conclusion. Tell the court what rule you want it to adopt. “This Court should adopt Rule B because it is consistent with the remedial purposes of tort law.”
Second, discuss the rule options. Begin by explaining that there is no binding precedent for the issue. Then, help the court understand the rules it could adopt. Cite to authority for all rule options.
Third, describe the impact of applying the preferred rule. Argue that the preferred rule will be better for society. Respond to your opponent’s arguments as to why another rule is better. Cite to authority to support these arguments.
Finally, restate your conclusion and reiterate the rule you want the court to adopt.
Battle Strategy #5: Study the Great Fights.
When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it. Collect effective arguments in your quiver so you are ready for your own battle. I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General. You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.
Tuesday, February 19, 2019
As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.
It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.
The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.
Literary allusions can be very effective tools in legal writing.
The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.
Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.
First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.
Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.
Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).
Make sure the allusion agrees with the law.
Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.
For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.
Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).
The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.
Let the reader discover the allusion.
It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.
Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.
Be sure the reader will recognize the allusion, or can understand the point if not.
When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.
In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).
Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.
We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.
Take a note from Justice Ginsberg, who made a Biblical allusion without any expectation of biblical scholarship, and then explained exactly what she meant:
No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.
NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).
Sometimes allusions can draw the sting out of a rebuke
Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.
Homer, the author of the Iliad and the Odyssey, two foundational works that should still be at least recognizable to our readers, was known to make mistakes. Indeed, Homer killed a character earlier in one of his texts and then used the same character later, fully alive, in apparent error. This led the Roman poet Horace to write that “even the noble Homer sometimes nods.”
Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.
When Justice Cardamone was tasked with telling the district court judge that the Second Circuit had already set out the law of the case in a prior appeal, and that law had not been followed, he used this literary reference in his opening:
When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).
While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.
(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).
Saturday, February 16, 2019
Recently, Tessa wrote about useful tools for scoping out the court. In her post, Tessa discussed resources for learning more about your audience, so you can effectively tailor your brief and argument.
In this post, I'll address some strategies for those times when learning more about your audience just isn't possible. For instance, if you're arguing to a panel of the Fourth Circuit, you'll have no idea who's been pouring over your brilliant brief until it's show time. Similarly, if your audience is a state supreme court, it's unlikely that any specific tidbit is going to save you. Consider the odds. In North Carolina, where I practice, you'd be left trying to anticipate the desires of seven justices, each with a different background.
So what's the advocate to do? Use your brief not only to argue but also to educate.
Here's some background. Recently, I heard North Carolina's Senior Associate Justice, Paul Newby, speak at a CLE. Justice Newby was tasked with explaining the Supreme Court of North Carolina's mandatory appellate jurisdiction in complex business cases.
The Justice made the point that too often the nuance of a complex business case may be lost on his colleagues. Each of them has a different background, and only one -- himself -- had a history of litigating business disputes, like shareholder derivative actions.
The problem isn't that the justices don't approach each case carefully. Quite the opposite. It's that they're spending too much time trying to grasp the foundational principles, which the attorneys didn't explain sufficiently, and thus don't have enough time to digest the arguments.
That got me thinking. Lawyers get tunnel vision. We know our case -- the ins, the outs, the twists, the turns. Sometimes, we've lived with it for months or maybe even years. We've done the legal research and read all the pertinent authorities.
Being so caught up may not be such a bad thing. If you were involved before the appeal, you have an intimate knowledge of the case that an appellate lawyer will try her best to recreate. But being so caught up also has its downsides. It's easy to become too comfortable with a set of facts, or with a legal principle.
But skimping on the basics can keep your reader from buying what you're selling. If a judge has to read your argument multiple times to get a basic grasp on the issues, you're losing ground. The time that a judge spends re-reading your brief, pouring over the record, or, worst of all, doing background legal research is time that he or she is not spending thinking critically about your case. Chief Justice John Roberts said as much in a 2007 interview with Brian Garner. (Read the whole thing, but especially check page 28 of the PDF).
So what can we do about it? Like all good legal problems, the answer depends. The answer depends on whether the wrinkle in your case is factual or legal.
If the complicated issue is factual, consider a tactic that a partner of mine calls "putting on the white hat." Take the opportunity to explain, as honestly as you can, not only the facts behind your case but also the context. Why are the parties fighting? What are their motivations?
I know, I know. That sounds more like a mediation statement than an appellate brief. But the reader will appreciate it. By putting the case in context, you'll have gained two advantages. First, you will have explained the case in a way that helps the judge or her law clerk understand it. It's likely your opponent won't, which also means you'll get a chance to present your case's human factors. And that leads to the second point. By explaining the human factors motivating your case from your client's perspective, you'll gain a subjective advantage. You'll humanize your client.
Sometimes, putting your facts in context is as simple as an extra sentence, or an extra phrase. For instance, if you're in an employer-union ERISA dispute, consider telling your reader what the employer does. Likewise, consider telling your reader who the union represents. Sure, these facts have nothing to do with the nuance of the ERISA plan in dispute, and you probably won't reference them anywhere in the brief. But this type of stuff is important if you want your brief to do more than recite facts; it helps your brief tell a story.
In any case, if the complicated issue is legal, then the best approach is to keep it simple. Remember, judges are generalists. While you might live and breathe environmental or bankruptcy or intellectual property law, that doesn't mean that your judge does. So think twice before you start using terms of art without first describing them in plain English. Slow the pace of your brief, educate your reader, and then explain why you should win.
I recognize that it might be frustrating to go back to basics. But there's yet another benefit. You have the chance to teach the judge the applicable law as you see it. It's another chance for advocacy, no matter how subtle.
To conclude, I'll leave you with this thought, which, to some extent, ties these points together. Be creative about how you structure your brief. For instance, if you're arguing about a novel issue of statutory interpretation or a complex statutory scheme, the court will likely be less interested in the facts of your case than with an overview of the statute. Lead with it. Embrace it. You can take a lot of approaches when writing your brief and, fortunately, very few are wrong. But more on that in my next post.
Tuesday, February 12, 2019
Last night, I watched On the Basis of Sex with first-year law students. Munching on popcorn and candy, the students learned about Justice Ruth Bader Ginsberg and her first gender-discrimination case, Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (10th Cir. 1972). Moritz challenged section 214(a) of the Internal Revenue Code, 26 U.S.C. § 214(a) (1954), because it precluded him, as an unmarried man, from claiming a caregiver deduction despite caring for his elderly mother.
On the Basis of Sex provides 1Ls with an excellent introduction to appellate advocacy. The movie begins with Ginsberg’s first day of law school, then chronicles her writing her first brief and delivering her first oral argument. After the movie, I discussed with the first-year students how the movie compares with what they will do when they receive their first appellate problem in a few weeks. Below are some of the lessons learned.
Appellate Practice Is a Lot of Work
Most of the movie occurs outside the courtroom. Students saw Ginsberg meet with Moritz to discuss taking an appeal. They saw her strategize with other attorneys about arguments. She works with her husband, a tax attorney, and her staff and students at Rutgers Law School. She researches, writes, and rewrites the appellant’s brief. When appellee’s brief arrives with an appendix of over six hundred federal laws that distinguish between men and women, Ginsberg and her team look up and discuss each one. She takes a settlement offer to her client. Before oral argument, Ginsberg practices before a moot court and then before a mirror. Ginsberg works hard. The process takes a long time.
Oral Argument Is a Little Scary
The climax of the movie is during the final minutes when the parties argue before the Tenth Circuit. Students noted how different oral argument looks from the trials they had seen on TV. There is no jury. A lone attorney stands before a panel of three judges. They remarked how Ginsberg was nervous and awkward at first. The judges directed the course of the argument. They interrupted with questions.
The students began to imagine what it will be like when they argue in April. We discussed how preparation goes a long way toward easing nerves. I shared that they will have the opportunity to practice before moot courts organized by our Moot Court Honor Society. I encouraged them to practice in front of a mirror like Ginsberg. I shared that it is normal to be nervous, especially for your first argument.
One Case Can Be Two Different Stories
The underlying dispute in Moritz involved the denial of a tax deduction because the taxpayer did not meet the qualifications in the tax code. The law was clear. Mr. Moritz did not qualify for the caregiver deduction because he was an unmarried man. Had he been a woman, divorced, or a widower, he would have been eligible for the deduction.
The students observed how the lawyers (arguing for the IRS) and Ginsberg (arguing for Mr. Moritz) told two different stories based on the same case. The IRS portrayed Mr. Moritz as a tax cheat. Ginsberg held him up as a loving and devoted son. The IRS, armed with one hundred years of precedent, argued that the Tenth Circuit should protect society by maintaining the status quo on gender. Ginsberg advocated for new law because precedent had failed to keep up with society’s evolving views on gender.
During oral argument, the IRS argued that “radical social change” is something to be feared and must be stopped. Ginsberg picked up on this point during her rebuttal. She argued that “radical social change” had already happened and the Tenth Circuit should bring the law into alignment with that change. Students were struck by this exchange. Each side used the same words to make two very different points.
At the end of the evening, students left our gathering excited, inspired, and a little nervous. I’m grateful to have had the opportunity to introduce them to appellate advocacy in such a fun way. Ginsberg remarks at one point during the film that by teaching law students she hoped to inspire the next generation of lawyers. Through this movie, Justice Ginsberg is still doing just that.
Sunday, February 10, 2019
Hi everyone! I'm grateful to be included as an author on the Appellate Advocacy Blog. Please bear with me as I get the hang of it.
For my first post, I wanted to address something that has been happening with alarming frequency in my practice. A little background--in 2015, I opened my appellate practice after teaching lawyering skills for ten years. Since returning to practice, I have been (perhaps naively) surprised at what attorneys will say in briefs. In my pre-teaching life as a young(er) attorney, the joy in writing briefs was that the record was the record and I didn't have to argue facts. (Insert your favorite "in my day, we had to walk 4 miles through the snow to get to school in the morning...."). And now in my post-teaching life, I find myself responding to Statements of Fact that omit relevant facts, and misrepresent others. Is this a new trend in line with the whole "Alternative Facts" movement? And what to do about it?
Of course, everyone knows the rules here. Federal Rule of Appellate Procedure 28 requires that an appellant's brief contain "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record." The state corollary in Missouri, where I have been practicing the last two years, defines the Statement of Facts as "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Even though the terms "relevant," "concise," and "fair" might have different meanings to different writers, the rules just don't provide for omission of key facts, or reinvention of facts in the record.
And of course there's Model Rule of Professional Conduct 3.3 requiring "candor to the tribunal." A lawyer may not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
I've discovered a few additional imperatives when reviewing your opponent's statement of facts that I hope you will find useful.
- Look carefully for material omissions.
Since our first year legal writing class, we have learned that attorneys can't omit bad facts in the statement of facts. We are taught how to "artfully" deal with the bad facts, or hide them in plain sight, or just admit them and get the whole business of bad facts out of the way. But in reality, bad facts are omitted from the Statement of Facts all the time.
Example: Initially, the parties were granted joint legal and joint physical custody over the child, but Mother had "final say" if the parties could not agree. After the first custody modification proceeding, that "final say" language was removed from the parties' parenting plan and the parties were ordered to share all decision-making rights.
So the way these facts are presented, it would seem that as a result of the modification proceeding, neither parent had "final say" in making decisions for the child, right? Wrong. While the facts as stated were themselves accurate, and the words "final say" were removed from the parenting plan, the writer of that brief omitted the following: "in the event that the parties cannot agree, Mother shall have the discretion to make the final decision. . . ." The prior modification decision wasn't at issue in this appeal, but still. Less than scrupulously accurate? In your response, point out the omission and correct it, clearly and concisely.
2. Identify inaccurate inferences based on trial testimony, or "I don't think that word means what you think it means."
For most appellate lawyers, our job is to identify the meanings of words. I love nothing more than a good old-fashioned plain language statutory interpretation argument. But beware of the tendency of some to assume an agreed-upon meaning of what was said.
Example: Mr. Smith consented to his attorney's withdrawal, when Mr. Smith said "okay" after the trial court stated it was granting the attorney's motion to withdraw.
As anyone reading a trial transcript can attest, instances of the word "okay" occur more frequently than we'd like to believe, and do not usually indicate consent. Get out the old dictionary (I always go with the OED because it is so comprehensive), and point out that the word "okay" also means "introducing an utterance or as a conversational filler, typically without affirmative or concessive force, but rather as a means of drawing attention to what the speaker is about to say: well, so, right." Done and done.
3. Beware the Projector, or "I know you are but what am I?"
After you've filed your brief, whether you're representing the appellant or the respondent/appellee, be prepared for allegations of inaccuracy in your Statement of Facts. Urban Dictionary defines"projection" as "[a]n unconscious self-defence mechanism characterised by a person unconsciously attributing their own issues onto someone or something else as a form of delusion and denial."
Example A. Broad accusations: The appellant's one-sided, argument-riddled statement of facts is unfit to be a statement of facts in an appellate brief.
How to respond to this? I believe in reiterating the scrupulous accuracy and citations to the record for your statement of facts. Nip that one in the bud, but address it.
Example B. Specific false allegations: In his Statement of Facts, Mr. Smith states that the premarital portion of his retirement account was valued at $200,000, without disclosing it was just his testimony.
Actual sentence in the Statement of Facts: "Mr. Smith orally testified that, the premarital portion of the retirement account was valued at $200,000."
What to even do with that statement? Again, just unpack it for the court, explain the omission and the inaccurate nature of the claims. My suggestion in brief writing, is to tolerate none of this kind of manipulation, even if the issue itself isn't one for the court of appeals. Be unwilling to allow another officer of the court to paint your writing as manipulative or deceptive.
4. A few final tips for disputing untruths:
- Be short and direct. Leave the outrage at the door. (i.e., don't say "nowhere has the undersigned read a more egregiously inaccurate Statement of Facts").
- Avoid adjectives and adverbs ("Respondent is incredibly, blatantly wrong"). I like to say simply: "Respondent is wrong."
- If you are the respondent, better to first set the record straight and dispute inaccuracies made by your opposing counsel; then bolster your own story. If you are the appellant, brace for the attack, and then respond in your reply brief.
- This is a good time for bullet points. Just list everything in the opposing Statement of Facts that's inaccurate or misleading, or omits information, in bullet form.
- Move on to your own story as quickly as possible.
In the world of appeals, we fancy ourselves the intellectuals and academics of legal practice--so why would any appellate attorney wants to put his or her reputation on the line by omitting and reconstructing facts in the Statement of Facts section of a brief? And then, is it your responsibility to correct these mischaracterizations? I think yes. Does it matter how significant the mischaracterizations are? I think no.
Correct all outright lies, omissions of critical facts, and suggestions of blame-shifting. Use your allotted word count to be scrupulously honest.
And for next time---misrepresenting legal authority. Or I'm open to suggestion!
Thanks for reading,
Friday, February 8, 2019
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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.
Supreme Court Opinions and News:
The Supreme Court voted this week by a 5-4 margin to a Louisiana abortion law from going into effect pending appeal. The law would have required abortion providers in Louisiana to have admitting privileges at nearby hospitals. Justice Kavanaugh filed a dissent. The Court's vote likely signals that the Court will hear the case during its next term.
Federal Appellate Court Opinions and News:
Fifth Circuit Court of Appeals Judge James Ho authored a dissent this week in which he concluded that Title VII prohibitions on sex discrimination do not extend to prohibit discrimination against LGBT workers.
State Appellate Court Opinions and News:
In Texas, the chief justice of the Texas Supreme Court called this week for the state to do away with its system of electing judges by political party when he gave an annual speech to the state's legislature.
The ABA's Council of Appellate Lawyers publication Appellate Issues is out with its January issue. The issue features articles about the programming during the 2018 Appellate Judges Education Institute Summit from last November.
On #AppellateTwitter this week, Ross Guberman noted an interesting split between appellate attorneys writing "this appeal presents the issue whether a court . . ." vs. ". . . the issue of whether a court . . ."
Wednesday, January 30, 2019
Do you over write your brief or over train for oral argument? Is there such a thing as too much of a good thing? I have asked myself these questions many times in the past, and fairly frequently these days as I prepare my students for moot court competitions and, ultimately, the practice of law. In this week’s post, I am pulled back in time to my first real-world appellate brief.
I will admit to being a tad overly zealous when I first began practicing. In the first brief I filed, my table of authorities was more than two pages. Opposing counsel had cited 6 cases. She said I needed to have my caffeine taken away. She was right. I am not saying that my brief was bad. I didn’t think it was bad then, and I still don’t. It was just too long; the amount of briefing I did was unnecessary.
It is easy to be lulled into believing that you need an elephant gun to kill a house fly. That gun, however, will do far more damage to the house than to the fly. In fact, you might miss the fly altogether. Writing too much can (1) lead your reader to believe you lack confidence in your case, yourself, or your reader; (2) cause you to potentially say something that is better left unsaid, and (3) bore your reader. None of these options is persuasive.
In that first, real-world, appellate brief, I managed not to say something that was detrimental to my argument. And, although I won, I have to credit the correctness of the legal issue rather than my stellar advocacy skills. As I wrote my brief, I was confident … and I wanted the world to know how right I was. I imagine that my reader was not persuaded by my confidence, or that the reader saw any confidence in my writing. While I set out the rules, and where they came from, and described the many ways in which the courts had applied the rules, and compared our facts to the facts of every case I had relied on, repeating and repeating myself, my opponent said only what was necessary. She articulated the legal issues, explained only what needed to be explained, and alluded to arguments that were tangentially related to the main argument, but said no more. I, on the other hand, went after every point with the same enthusiasm my dog exudes when he chases tennis balls. And, just like my dog, as soon as I set my teeth fully into one point, I dropped it to chase after another. Each point was fully made, but just barely, and the reader had to be exhausted trying to keep up.
By using the same level of enthusiasm for every point, I left the reader wondering if I knew what my strongest argument was, or if I understood my opposing counsel’s strongest argument. The reader was likely bored reading pages upon pages about a fairly simple legal issue, and wondering whether I would ever get to the point.
I cringe when I think that the reader, who was reading my brief for work rather than for pleasure, had to read every one of those pages. After all, the reader couldn’t just skip to the end, lest I had hidden a treasured moment of wisdom somewhere deep inside. My lack of discernment regarding what should be included and what could be left out diminished any trust the reader had that I was correct.
As my career developed, I became a better writer. My writing became direct and straight to the point, allowing logic to guide persuasion, making more of the important points and presenting -- without fanfare -- the foundational points that set the stage for main act. Later, when I became the reader, I valued the simplicity of a well-organized, logical argument.
Friday, January 11, 2019
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 Dan Real a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt.
The Supreme Court heard arguments this week in Franchise Tax Board of California v. Hyatt. The case, in which microchip inventor and multimillionaire Gilbert Hyatt alleged that a California tax board investigator had harassed him by peering through his windows and examining his trash, has been before the Court before. In 2003, the Court denied immunity to California’s Franchise Tax Board. In 2016, the case was before the Court again, and at that time the Court split 4-4 on the question of whether to overrule Nevada v. Hall, a precedent that allows one state (and its agencies) to be sued in another state’s courts. After a remand on damages, the case is now back, and with a full number of Justices, the Court will this time answer the question of whether to continue the precedent of Nevada v. Hall or overrule it. Aside from the specific issue of states being sued in other states' courts, the case also holds implications for how the current makeup of the Court views precedent and the advisability of overruling it.
This week’s practice pointers come courtesy of the 2018 edition of the Georgia Bar Journal, in which #AppellateTwitter’s Chief Judge Dillard of the Georgia Court of Appeals was interviewed. Tessa talked about it at length in her post on this blog earlier this week.
- Georgia Bar Journal Electronic Edition
- Appellate Practice Blog Post
- Tags: @JudgeDillard @TessaDysart
Thursday, December 20, 2018
Margaret Hannon, guest blogger, Clinical Assistant Professor of Law, University of Michigan Law School
Distraction is not the first thing that comes to mind when thinking about effective persuasion. Isn’t the aim of persuasion—and advocacy more generally—to try to avoid distraction? To the contrary, Professor Melissa H. Weresh argues that distraction and redirection are persuasive techniques that advocates can use effectively to influence results. In her article, “Wait, What? Harness the Power of Distraction or Redirection in Persuasion,” recently published in Legal Communication & Rhetoric: JALWD, Professor Weresh “studies how distraction influences results and whether there is therefore a potential for the intentional use of distraction, or redirection, in advocacy.” As a baseline, Professor Weresh defines distraction, misdirection, and redirection as “deliberately redirecting the attention of the listener with persuasive intent in mind.”
Professor Weresh connects the use of redirection in advocacy to principles from storytelling and psychology. All three hinge on the innate human desire for “equilibrium, or resolving uncertainty.” When redirection techniques are used to disorient the listener and shock her out of her equilibrium, a solution can then be offered that resolves the uncertainty and allows the listener to regain her control, leading to a solution that the storyteller wanted all along.
Professor Weresh argues that advocates are already using redirection techniques, even if they are not explicitly described as such. As advocates, lawyers use redirection by making choices “as to what to reveal or emphasize” to “orient the reader’s focus or attention,” which then “redirect[s] the attention to a persuasive result.” For example, criminal defense lawyers have multiple redirection strategies at their disposal. They can use explicit misdirection to create doubt about bad facts and law by “keeping relevant material out of consideration, confusing witnesses, or redirecting the flow of the argument.” With this strategy, the lawyer tries to “undermine the plausibility of the story offered by the prosecution and therefore to interfere with the coherence of the story offered by the prosecutor.” Criminal defense lawyers can also use more implicit redirection strategies, such as using closing arguments to recast the role of the jury as the protagonist. But the use of redirection is not limited to the criminal defense context. Professor Weresh also presents other redirection strategies that can be used more generally. For example, advocates may frame or reframe an issue to invoke the decisionmaker’s fear (“the reptile strategy”). When used by plaintiffs, it “seeks to pit the [decisionmaker] against the defendants by making the [decisionmaker] feel that the defendants’ actions and products threaten themselves, their families, and their societies.”
Redirection strategies, of course, raise ethical concerns. If lawyers are expected to be truthful, then how can they engage in misdirection? There is no bright line between true and false; instead, there is a continuum—some middle ground between absolute truth and deliberate misleading or misrepresentation. Ultimately, advocates must use their own judgment when considering how they can effectively, and ethically, use redirection techniques in their practice.
Professor Weresh’s article pushes readers to consider how redirection could supplement approaches to advocacy and, more generally, to persuasive storytelling.
Special thanks to Alison Doyle for her help with this blog post.
Thursday, December 13, 2018
The title of this post is misleading, as it implies a court is threatening to sanction an attorney for a creative submission. While this title may get the reader's attention, the complaint in the form of a screenplay is the least of this attorney's problem.
Ilya Liviz, a Massachusetts attorney, has had several ongoing disputes with the state court about filing procures and requirements. He was seeking to have the federal court hear his constitutional due process claims in these state court dismissals, and this last screenplay filing was enough for Judge Indira Talwani. Judge Talwani warned the lawyer that if he kept filing insufficient complaints, after being given fair notice, sanctions would be imposed under FRCP Rule 11. The screenplay format was mentioned by the judge but it was only a problem because it lacked the necessary substance under FRCP Rule 8.
Liviz filed his Oct. 3 suit on behalf of client Lyudmila Maslyakova, who is referred to as “Grandma” in the screenplay complaint. Liviz said in a “plot” subheading that Maslyakova was ticketed for using her husband’s handicapped placard, and she faces an immediate suspension of her license if a court does not come to her aid....
“Normal sunny day, people are smiling as they are going in and out, of the local store,” the complaint said under an “Act 1” heading. Liviz goes on to describe how Grandma pulls up to the store with her husband, her husband gets out to shop, and Grandma puts the car in reverse to pull away and do her own shopping elsewhere. “All of a sudden she hears the police siren and red and blue lights,” the Act 1 summary said.
A “theme” subhead in Liviz’s complaint said his client is seeking an injunction against the state high court for a constitutional violation of due process access to the courts because of rejected appeals and a refusal to waive filings fees.
Interestingly Liviz responded to the judge's order by moving for sanctions of his own against the court, and asking for the judge's recusal. His response will give the reader an idea of the absurdity that the court has had to put up with. Creative citation and colorful footnotes aside, here is one passage that conveys a bit of the flavor of the filing:
Simply said; this is a frivolous comparison that equates comparing apples to a screwdriver, that is justified with erroneously juxtaposed comparison of ol-lady driver who got screwed while eating an apple. (Say what? Emphasis added.)
That passage is exactly the same as it appears in the filing. The rest of the document is slightly better, but it keeps a mocking tone and has little logical progression. Therefore, it would not be hard to understand why the court felt it necessary to remind Liviz about sanctions.
Liviz said he filed the original complaint as a screenplay because he couldn't get anyone to pay attention to him.
Liviz told the ABA Journal on Dec. 11 that he filed the complaint in the form of a screenplay because he needed to draw some attention to his client’s plight. “If I had filed it regular, not a screenplay, would you have called me?” he asked.
He elaborated on the reason for the unusual filing in an email to the ABA Journal. “No one was listening or helping,” he wrote. “Not the news, not the courts, no one; I needed to get attention to the real issue here, which is proved by your questions. What should be more important and newsworthy; showing interest in a complaint written like a ‘play’ or your attention on the fact that people’s rights are being deprived by the judiciary, which is entrusted in protecting them? I had 14 appeals thrown out in state court. No one was listening, and I feared these matters would be thrown out like all others, without even considering the merits. Thus, I switched strategy, and filed a ‘screenplay.’ ”
If there is to be creativity of this sort involved in official court documents, it usually comes from the bench side. Some judges have written their opinions like a story, or like a poem, and have used pictures to illustrate their points. These opinions are often paying up lighthearted points in the cases. In this instance, the lawyer decided to inject some uniqueness to his otherwise dry case. Because he has a history of what appears to be redundant suits, it's hard to say whether a screenplay, if done well, would be at all persuasive. It's certainly out-of-the-box, but probably a little too far to be taken seriously. It runs the risk of insulting the court, which in this case, it likely did. All things considered, I won't be recommending this structural form to my students.