Appellate Advocacy Blog

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

Sunday, February 2, 2020

Don’t Make These Mistakes When Writing An Appellate Brief

When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.

1.    You fail to follow the local court rules

The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.

2.    You seek a remedy that is outside of the court’s authority

When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).

Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.

You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.

Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.

3.    You overstate the relevance of precedent

Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.

Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.

4.    You are not direct with the court

Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:

  • Identify the errors in the lower court’s decision
  • State the remedy that you would like the court to provide
  • Explain why you are entitled to this remedy
  • Briefly provide the facts and relevant law that support your position

If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.

5.    You do not consider the relevant standard of review

Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.

Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.

6.    You do not organize your brief effectively

Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:

  • Headings and subheadings that are rarely, if ever, longer than one sentence
  • A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
  • Paragraphs that only discuss a single point or issue and that always begin with a topic sentence

If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).

7.    You file an unnecessarily lengthy brief

Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.

Simply put, less is often more.

8.    You make basic writing or stylistic errors

Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:

  • Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
  • Use block quotes unless absolutely necessary
  • Include overly long paragraphs
  • Repeat arguments
  • Use complex or esoteric words

Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.

February 2, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, January 12, 2020

Great Writers Know When to Break the Rules

Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.

However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.

1.    You can end sentences with prepositions

As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:

Who are you referring to?

Versus

About whom are you referring?

The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.

Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.

2.    You can write a one-sentence paragraph

Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.

In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.

3.    You can use the passive voice

The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:

The rule was violated.

Versus

The Defendant violated the rule.

If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?

Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.

4.    You can use sentence fragments

A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:

Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.

The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.

5.    You can start a sentence with “and” or “but” (or other conjunctions)

Generally, you should not begin a sentence with “and” or “but.”

But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.

The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.

Versus

The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.

Which do you prefer? The first example both reads and flows better.

6.    You can split infinitives

Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:

To boldly go where no man has gone before.

Versus

To go boldly where no one has gone before.

The first example sounds and reads better.

7.    You can use “you” instead of “one”

Sometimes, it is effective to use “you” instead of “one.” Consider the following example:

If one prefers, one may appeal the committee’s decision within ten days.

Versus

You can appeal the committee’s decision within ten days.

The second example sounds better and thus results in more readable prose.

8.    You should frequently use profanity and vulgar language in your legal writing

I’m just kidding. Don’t ever do this!

Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.

January 12, 2020 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Ideas for Including “Off-Brief” Moot Court Argument Techniques in Our Writing & Teaching

Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise.  As I like to tell my students, since I am not in charge of the world, I cannot offer more time.  However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.  

In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation.  As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’  In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.”  Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000). 

While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions.  For example, Professor Vitiello explains:  “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments.  A lawyer who lacks that skill cannot adequately represent her clients.”  Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006).  Similarly, Professor Hernandez reasoned:  the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.”  Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998). 

Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges.  While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible.  See id. at 74.

The advantages of off-brief oral argument translate well to written work.  Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal.  See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003).  A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches.  See generally Hernandez, 17 Rev. Litig. at 77.  

Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs.  Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows. 

For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client.  Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.

In my first-year classes, I similarly ask students to draft arguments for their opponents.  I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment.  Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments.  Students have shared with me how much they enjoyed being “forced to see the other side” this way.  And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time.  This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.

Have you used an off-brief technique to enhance your writing or teaching?  Feel free to share your ideas in the comments. 

January 12, 2020 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument | Permalink | Comments (0)

Sunday, December 29, 2019

Tips to Immediately Improve Your Writing Skills

Developing excellent writing skills requires time, practice, and repetition. As Justice Antonin Scalia once stated, “there is an immense difference between writing and good writing,” and “it takes time and sweat to convert the former into the latter.”[1] Indeed, developing excellent writing skills is a lifelong process; those who write effectively enhance the persuasive value of their arguments and maximize their chances of succeeding on the merits. Below are tips that will enable attorneys to quickly and significantly improve the quality of their writing.

1.    Eliminate the B.S.

Be sure to eliminate unnecessary words. These words add no persuasive value to your argument and they will likely distract or annoy the reader. Thus, you should eliminate words such as “very,” “entirely,” “only,” “really,” and “actually.”

Also, avoid adverbs, adjectives, and over-the-top language. These words do not enhance the quality of your writing or the strength of your argument. For example, do not say “The defendant ran extremely fast in the store.” Say, “The defendant sprinted into the store.”

2.    Outline your argument

 Before drafting a brief, outline your arguments, including the relevant facts that support those arguments. Doing so will enable you to assess whether the brief is organized effectively, flows well, and includes the relevant facts and legal principles.

3.    Write shorter paragraphs and focus on only one point

When drafting a legal document, such as a memorandum or brief, you should draft short paragraphs (e.g., three to five sentences in length). Long paragraphs can distract the reader and thus fail to keep the reader engaged. Indeed, imagine if you were reading a brief and on every page, you encountered a long paragraph that occupied the entire page. Would you want to keep reading?

Additionally, only discuss one point (or element of a legal argument) in a paragraph, and always begin a paragraph with a topic sentence. Thus, do not include multiple legal arguments (or standards) in a single paragraph because it will disrupt the flow and organization of your argument.

Relatedly, avoid block quotes unless absolutely necessary. Some attorneys reserve block quotes for information that they consider exceedingly persuasive or relevant. However, some judges do not read block quotes, which means that they will skip the passages that you consider most important.

4.    Use headings and subheadings

Heading and subheadings enhance the flow and organization of your argument. For example, the four elements of negligence are: (1) duty; (2) breach of duty; (3) direct and proximate causation; and (4) damages. Thus, when drafting, for example, a memorandum, you can organize your analysis as follows:

A.    Duty

B.    Breach of Duty

C.     Causation

        1.    Direct Causation

        2.   Proximate Causation

D.    Damages

When organized in this manner, your memorandum will flow effectively and the reader will easily follow the logic and flow of your analysis.

5.    Write shorter sentences

Shorter sentences engage the reader and keep the reader’s attention. Longer sentences do the opposite. Furthermore, short and direct sentences can effectively emphasize a particularly favorable fact or legal principle. Thus, as a general rule, avoid sentences that are over twenty-five words.

6.    Vary sentence length

Varying the length of your sentences keeps the reader’s attention. If your brief consists of excessively long sentences, the reader will likely become bored. And if you include only short sentences, your writing will be choppy and lack flow. Ultimately, therefore, to ensure that your brief flows effectively (and to maximize its persuasive value), vary the length of your sentences.

7.    Use transition words to enhance the flow of your document

To ensure that your arguments flow effectively, use transition words such as “Furthermore,” “Moreover,” “Additionally,” and “Also.” Doing so enhances the flow and organization of your argument.

8.    Repeatedly re-write and edit your brief, and do so on paper, not a computer

Studies have shown that writers who edit and proofread their work on paper identify more mistakes than those who edit and proofread on a computer.

9.    Don’t change tenses

Be sure to write your sentences in the same tense. Consider the following example:

The plaintiff walked out of the door and the defendant strikes the plaintiff, causing severe injuries.

Although there may be circumstances when changing tenses is appropriate, you should, as a general rule, maintain the same tense.

10.    Be simple and straightforward

When writing any document, you must consider the audience to whom it is directed. Indeed, the tone, complexity, and style of your writing may change depending on, for example, whether it is directed to a client or court. Regardless of your audience, however, you should always strive to draft legal arguments in a simple, straightforward, and easy-to-understand manner. After all, would you want to read a brief that is riddled with ‘SAT’ or esoteric words, and Latin? Of course not.

11.    Use Grammarly or another reputable editing service

Using a reputable editing service, such as Grammarly, can ensure that you identify most, if not all, of the spelling and grammatical errors in your document.

12.    Purchase books that serve as quick and effective reference tools

Be sure to consult references that will assist you in adhering to grammar and style rules. Books such as The Elements of Style by Strunk and White, or the Texas Manual of Style, are easily accessible and effective references to ensure that your writing is free of grammatical or stylistic mistakes.

13.    Read excellent writing

One of the best ways to become an excellent writer is to read excellent writing. The website below, for example, contains briefs written by the Solicitor General of the United States: https://www.justice.gov/osg/supreme-court-briefs.

 

[1] Edward A. Adams, Scalia: Legal Writing Doesn’t Exist (Aug. 9, 2008), available at: http://www.abajournal.com/news/article/scalia_legal_writing_doesnt_exist.

December 29, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Sunday, December 15, 2019

Writing an Outstanding Appellate Brief

The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.

1.    Frame the issue to maximize the persuasiveness of your argument

One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:

“The case involves whether the Appellee is liable for negligence”

                                                            versus

“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”

The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.

2.    Simplify the issue and argument

Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.

3.    Have an outstanding introduction

An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:

  • Draft a powerful opening sentence that explains why you should prevail
  • Tell the court exactly what you want (i.e., the remedy you seek)
  • Briefly present the most persuasive facts and legal authority that support your position
  • Include a theme that connects all of your arguments

Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.

4.    Tell a story

Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.

5.    Don’t argue the facts (unless absolutely necessary)

Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.

6.    Know the standard of review

Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.

7.    Be honest and acknowledge unfavorable law and facts

Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.

8.    Only present strong legal arguments

Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.

9.    Write, re-write, and edit your brief

Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.

10.    Don’t overwhelm the court with needless legal authority

Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.

11.    Don’t use boilerplate conclusions

Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek

12.    Put yourself in the adversary’s and court’s shoes

When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.

13.    Read great appellate briefs

If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.

December 15, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, December 14, 2019

This Holiday Season, All Our Appellate Courts Want Is Good, Civil Writing

In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing.  While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.

The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained:  “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.”  942 F.3d 783, 792 (7th Cir. 2019).  For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog.  https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.

The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility.  Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics.  See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012).  In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law.  658 F.3d at 797-800.  According to Judge Sykes, who also authored McCurry:  “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.”  Stanard, 658 F.3d at 798.   Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in StanardId. at 800-02.

For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise.  I also use the case to show how lack of civility to the court and others inhibits persuasion. 

Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive.  On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.”  See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).

Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts.  2019 WL 6242111, *2-4.   In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings.  Id.  After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining:  “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.”  Id. at *4.   

This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil.  Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!”  Id. at *4.  When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id.  Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.”  Id.  According to the court:  “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not.  Such comments would not likely have been made about a male judge.”  The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender.  Id. at *5.  As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.”  Id.

The court ended its opinion:  “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.”  Id  According to Briganti,  good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.”  Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.”  Id.

Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal.  MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist:  Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019).  While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past.  Id.

Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions.  And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful.  Happy holidays!

December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Tuesday, December 10, 2019

The Genealogy of Law

In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities,[1]  the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award.[2] This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.[3]

But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?

It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.

Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award.[4] So let’s trace the genealogy of the abuse of discretion standard in these three districts.

Ohio’s Eighth District Court of Appeals

Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review.[5] The court in Cleveland State cited Citibank, N.A. v. White,[6] which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.

An earlier Eighth District case, Miller v. Management Recruiters International, Inc.,[7] had also applied the abuse of discretion.[8] Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co.[9] But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.[10]

Ohio’s Tenth District Court of Appeals

In Dodge v. Dodge,[11] Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support.[12] But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.[13]

The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc.[14] That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education,[15] which in turn cited MBNA American Bank, NA v. E. Paul Jones.[16] The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard.[17] While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard.[18] And Endicott did not say that abuse of discretion was the proper standard of review.[19]

Ohio’s Twelve District Court of Appeals

The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek.[20] Masek held that abuse of discretion was the correct standard of review[21] and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp.,[22] to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.[23]

The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc.[24] The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.

In Buchholz v. W. Chester Dental Group,[25] the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.[26]

These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.

[1] 103 N.E. 3d 804 (2018).

[2] Id. at 805.

[3] Id.

[4] Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).

[5] Cleveland State Univ., 50 N.E. 3d  at 289.

[6] 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).

[7] 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).

[8] Id. at 1166.

[9] 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).

[10] Id. at 849.

[11] 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).

[12] Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).

[13] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).

[14] 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).

[15] 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).

[16] Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).

[17] 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).

[18] MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).

[19] Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).

[20] 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).

[21] Id.

[22] L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).

[23] Id.

[24] 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).

[25] CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).

[26] In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).

 

 

December 10, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Monday, December 9, 2019

Gen Z Advocates

Does generational theory have any relevance in Appellate Advocacy? Yes, particularly in its teaching. Dr. Corey Seemiller, an expert in generational theory, recently gave her insights on Gen Z, the cohort born between 1996 and 2010, and how they approach advocacy at the Reimagining Advocacy Conference at Stetson University College of Law. The oldest members of Gen Z are now 24, so many current law students are in this group. Dr. Seemiller's keynote kicked off a weekend-long discussion of how to harness the strengths of Gen Z and bolster some of the weaknesses. Whether you work at a law school with these students right now or are a practicing attorney who will soon have Gen Z colleagues, it’s helpful to learn about some of their strengths and challenges as a group. Dr. Seemiller’s presentation gave the conferenceattendees a shared vocabulary. As a caveat, anytime one deals with generational theory, one deals in broad categories, but individuals and personalities vary. Still, I see applications for how I teach students to work as a team, read materials, approach an audience, and prepare for an oral argument.

So what characterizes Gen Z? Among other things, they are curious, honest, kind, and fair. They are diverse. They have experienced a significant amount of vicarious trauma and do not remember a world before Columbine and 9/11. They are motivated by relationships and by what they believe in. They are constantly connected and often addicted to technology; according to Dr. Seemiller they have an average of 8.7 social media accounts. Gen Z students say that they prefer face-to-face communication, but smart phones have been a part of their world since childhood or birth. They may need coaching in how to have live conversations.

Now that Gen Z has officially arrived at law school, and as we try to train them in appellate advocacy, there is a gap between the advocacy methods they have used and appellate advocacy. Over the last few years they may have engaged in twitter wars, used hashtag activism, and witnessed cancel culture. Appellate advocacy in some ways is the polar opposite of hashtag activism and slogans. Professor Mary Beth Beasley identified mastery as the key to appellate advocacy. Mastery takes focus. When we overburden our short term memories with a constant stream of information (like from a smartphone), we diminish our long term memory capacity. Both long term memory and the ability to build connections between a mass of materials are necessary to effectively advocate at the appellate level. Of course, these skills are important to all of us, but Gen Z has never known a time with out smart phones constantly pulling their attention. Many of these students have not learned to read deeply and sustain prolonged focus. We need to find ways to help them pursue and recognized mastery.

We can also try to harness Gen Zs strengths. Hashtag activism requires the ability to boil things down and be concise, which are helpful skills when thinking about theme. These students care deeply about the causes that are important to them. While they may not be patient in the skills development process, once they see the value in a project, they will buy in.

Gen Z is not alone in being constantly connected to technology; most of us are. So as we prepare to teach the next generation of students how to advocate, we need to consider the way that the audience is changing, too, even though there are not yet Gen Z appellate judges. Ultimately, the boiled down, concise persuasion styles Gen Z gravitates to may be helpful to any audience with a shortened attention span. Fortunately, it’s also good writing. But we need to teach students to achieve mastery, think deeply, and make meaningful connections before they start condensing.

December 9, 2019 in Appellate Advocacy, Law School, Legal Writing, Moot Court | Permalink | Comments (0)

Saturday, November 30, 2019

Advice for Drafting Amicus Briefs in Cases Pending Before the United States Supreme Court

The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?

1.    Good amicus briefs make original arguments.

Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?

You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:

Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.[1]

This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?

Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.

2.    Attract the Court’s attention at the beginning of the amicus brief.

Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.

Indeed, interviews with former Supreme Court clerks confirm this fact:

To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.[2]

Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.

3.     Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).

Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.

4.    Use social science data to support your arguments.

Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:

Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.[3]

For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.

5.     Focus on specialized areas of the law.

Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[4]

Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.

6.    Remember that your goal is to assist the Court in reaching a fair decision.

Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.

7.    Ensure that your writing is of the highest quality.

An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.

Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.

Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.

[1] Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).

[2] Id.

[3] Id.

[4] Id.

November 30, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 27, 2019

Valuing Precedent

Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts.[1]  When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances.  As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.”[2]  In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable.  Acting in this manner seems fair to everyone and keeps people we deal with content.  When we act differently, we call it a surprise, which can be a good thing or a bad thing.

 Courts use prior decisions or precedents in much the same way, as models for later decisions.  Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction.[3]  Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not.  Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors.[4]  Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges. 

Courts around the world consider precedent in varying degrees.  We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.

Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues.  Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable.[5]  In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given.  One decision alone is said to make law that must be followed in subsequent cases.[6]

On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law.  A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight.  These decisions do not bind the court to a particular interpretation of the law, nor do they make law.  In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.[7]

The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.

Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct.  For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis.[8]  The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions.[9]  Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts.  Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake.[10]  The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:

Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process.  Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.  Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.  Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.[11]

American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied.  United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant.[12]  He explained, “[S]tare decisis is not an end in itself.  It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”[13]

Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law.  In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision.[14]  Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law.[15]  The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions.  These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past.  Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.[16] 

 

[1] The author has published articles on the value of precedent and a book chapter that addresses the topic.  This post draws directly from those publications.  See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).

     [2]. Interpreting Precedents: A Comparative Study 1 (D. Neil MacCormick & Robert S. Summers eds., 1997).

     [3]. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).

     [4]. Deborah G. Hankinson, Stable, Predictable, and Faithful to Precedent: The Value of Precedent in Uncertain Times

http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).

     [5]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts).  See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).

     [6]. Rubin, supra note 5, at 1371.

     [7]. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”).  But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).

 

     [8]. Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 71, 74, 86-88 (2006).

     [9]. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998).  The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53.  See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”). 

   [10]. Citizens United v. Fed. Election Comm’n, 130 S. Ct 876, 911-12 (2010).

   [11]. Payne v. Tennessee, 501 U.S. 808, 827-28 (1991).

   [12]. Citizens United, 130 S. Ct. at 920 (Roberts, C.J., concurring).

   [13]. Id. (quoting Vasquez v. Hillery, 474 U.S. 254, 265 (1986)).

   [14]. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).

[15] La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).

[16] I have referred to this behavior as “systemic respect for jurisprudence.”  Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.

November 27, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, United States Supreme Court | Permalink | Comments (1)

Friday, November 22, 2019

The Weekly Roundup

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • After years in court, including one previously denied Supreme Court petition in 2015, Google v. Oracle will be heard by the Supreme Court. The dispute centers on the use of application programming interfaces (also called software interfaces or APIs), specifically whether the Copyright Act protects Oracle’s API that Google admits to using. For a much more astute summary and explanation, see the New York Times and National Law Journal.
  • This week’s New Yorker included an article on Justice Elena Kagan. See it here.

Federal Appellate Court Opinions and News:

  • The Fourth Circuit held that suspicionless searches of travelers’ digital devices violates the US Constitution. The ruling holds that US border agents need reasonable suspicion, though not a warrant, to search smartphones and laptops at US ports of entry.  See coverage in Reuters; CNN; or USNews.
  • A Federal Court has stayed four federal executions set to occur next month, effectively blocking the recent Justice Department decision to resume federal executions. The order issued a preliminary injunction based on concerns about the government’s lethal injection method. See NBC News, NPR; and CNN.
  • The ACLU on behalf of five journalists is suing the government claiming the government violated the journalists' First Amendment rights.  The suit challenges the government’s questioning of the journalists at the US-Mexico Border. See the complaint in Guan v. Wolf here. The ACLU announcement is here.

Appellate Practice Tips and Techniques:

  • Here’s a useful Twitter thread on best advice for legal writers.  It includes a post from Michelle Olsen about Justice Kennedy: “Justice Kennedy would tell his law clerks: ‘You can't write anything good because you've never read anything good.’”  The post includes a link to a Harvard Law Review tribute to Justice Kennedy.

 

November 22, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Tuesday, November 19, 2019

Narrative Arguments Built on the Sand

800px-Pieter_Bruegel_the_Elder_-_The_Tower_of_Babel_(Vienna)_-_Google_Art_Project

I have mentioned in past blogs the importance of the "narrative paradigm" in communications theory. In a nutshell, this theory argues that there is more to persuasion than the logic of your argument. Instead, the "truthiness" of an argument can be compelling, regardless of its objective merits, when it matches the life-experiences and biases of the reader or listener.

In legal writing, we often use allusions, or even meme-like story indexes, in order to quickly hijack the meaning behind a certain story or narrative to fit our needs. This often takes the form of biblical parables in an attempt to quickly convey the "truthiness" of a statement. The parable of the two builders, one who builds on sand and another who builds on rock, for instance, is cited in several cases. The gist of the parable being that if you do not have a good foundation, you cannot build a lasting structure or legal argument.

Citing to the parable, courts often make this comparison. Thus, "a motion built on speculation and conjecture will rarely withstand the winds of scrutiny." Barnette v. Grizzly Processing, LLC, 2012 WL 1067076, *1 (E.D. Ky. Mar. 28, 2012) (unpublished). Or "using the common law as the basis for reasoning, is like building a house upon the sands instead of upon the rock." Ex parte Estep, 129 F.Supp. 557, 558 (N.D. Tex. 1955). Or, even more simply, "[t]he argument is as insubstantial as a house built upon the sand." Russel v. Gonyer, 264 F.2d 761, 762 (1st Cir. 1959).

We all think we get the gist of this parable - that you must have a firm foundation in your home, life, or argument, or it will all fall apart when tested. But most of us don't really understand what it originally meant.

Ray Vander Laan, a theologian with extensive time and training in the middle east, has pointed out that this understanding of the parable is most likely incomplete. In the part of the world that this story was first circulated, the people lived in a rocky desert, where the rocks occasionally give way to even, sand-covered wadis. The floor of a wadi would be the easiest place to build. It would also be the most foolish, because wadis flood in a very predictable and eye-catching fashion:

This cultural knowledge changes the meaning of the well-known parable. It isn't just foolish to build on sand because sand shifts - it is insane to build on sand, because the house will inevitably flood and be destroyed.

This illustration is important for more than just the biblically minded. It shows that the power of a story depends on its understanding, and that this understanding can shift and change over time and cultures. That means that when we reference allusions, or reference stories, we need to make sure that our readers will have the same understanding as ourselves.

Now, as long as our intended meaning meets the understanding of our audience, it does not really matter that the original meaning was something different. Thus, the quotations above still work, because the general understanding of the parable is that a shifting foundation is bad. It is only if we were communicating with the original audience that meaning would be lost.

But this story serves as a reminder that our storytelling is only effective when we know that our audience is going to understand it. I have commented before about how obscure literary references might be admirable, but ineffective if the reader has no reference to the work. Understanding the audience, and their reception of a particularly story index or allusion is necessary to properly telling the story. To paraphrase a well-known marketing book, "To be successful... today, you must touch base with reality. And the only reality that counts is what's already in the [audience's] mind." Al Ries & Jack Trout, Positioning: The Battle for Your Mind 5 (rev'd ed. 1986).

This is not relevant just to the use of existing narratives, but to the stories you put together in your briefing. Remember that you may know the entire case and every detail, but that the court only knows what your present to them in the record. In order to make sure they hear the story you know, you must be sure to preserve all of the pieces of that story (by ensuring that all of your evidence makes it into the record at the trial level) and that you then present, on appeal, a complete narrative that contains each event or fact that makes your client's story persuasive. This includes facts that may not seem even legally relevant, but that are relevant to your audience.

In short, be sure you know what is in your audience's mind before you rely on narrative references to persuade them. Otherwise, you will be building an argument on shifting sand. And everyone knows that's a bad idea.

(Image source: Pieter Bruegel the Elder, The (Greater) Tower of Babel (Vienna), 1563)

 

 on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)
a motion built on speculation and conjecture will rarely withstand the winds of scrutiny.

Barnette v. Grizzly Processing, LLC, No. CIV. 10-77-ART, 2012 WL 1067076, at *1 (E.D. Ky. Mar. 28, 2012)

November 19, 2019 in Appellate Advocacy, Appellate Practice, Legal Writing, Religion, Rhetoric | Permalink | Comments (0)

Thursday, November 14, 2019

"Digital Public Commentary": A New Rhetoric for Lawyers?

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

After a hiatus, the Rhaw Bar is back to explore lawyer digital public commentary and raise some initial questions about lawyers engaging in digital rhetoric.

In Formal Ethics Opinion No. 480, issued in the Spring of 2018, the American Bar Association Standing Committee on Ethics and Professional Responsibility considered for the first time how a blogging lawyer must treat the confidentiality of client information. In deciding that the confidentiality rules applied to internet blogging, the Committee identified a category of lawyer speech it called “communicat[ion] about legal topics in public commentary.” The Committee recognized that while lawyers have historically “comment[ed] on legal topics in various formats” through “educational programs” and “articles and chapters in traditional print media such as magazines, treatises, law firm white papers, and law reviews,” the “newest format [for comments] is online publications such as blogs, listserves [sic], online articles, website posting, and brief online statements such as microblogs (such as Twitter®).” The Committee said that “[o]nline public commentary provides a way to share knowledge, opinions, experiences, and news.” 

Although the point of this opinion was not necessarily to identify a new cateogry of legal writing but instead to warn lawyers that their obligations of confidentiality extend to their non-client-centered public speech, the opinion has the secondary effect of raising two questions.  First, is a lawyer's digital public commentary a unique genre of legal writing?  And, if it is, what are the rhetorical possibilities for and problems of this form?

I'm going to make the case that writing public commentary--whether digital or not--is a unique genre of legal writing.  First, writing public commentary to influence thought and discourse on legal topics is decidedly less client-centered than other, more traditional forms of legal writing.  Writing public commentary is more connected to the lawyer's role as a "public citizen with a special responsibility for justice" than it is to the lawyer's role as a representative of clients.  Both of these roles are identified (along with others) in the Preamble to the Model Rules of Professional Conduct (most if not all states have adopted the Preamble's language). 

Second, the idea of the lawyer speaking publicly is implicit in what the Preamble says about the lawyer-as-citizen role.  The Preamble directs that “a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law[,] and work to strengthen legal education.” The Preamble further offers that a lawyer should “further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”  Both of these activities--cultivating knowledge and furthering public understanding--require communication with the public, not exclusively with courts, clients, or opposing parties in private and semi-private transactions. And if the public is now digital, it makes sense for the lawyer to communicate with that audience digitally.

So, I think the Committee was right to expressly identify "public commentary" as something different from the other forms of writing lawyers do.  And although lawyers making public commentary is an old phenomenon, the Committee rightly recognized that the "digital" is new.  

The digital information and arguments lawyers present to the public about legal matters of collective concern are a form of  "digital rhetoric," rhetoric that is electronic or computerized.  While digital rhetoric has characteristics in common with other forms of rhetoric, it also has some unique features.  Two of those features are circulation and fragmentation. 

Circulation refers to the way a message moves from audience to audience across space and time.  The rapid velocity at which messages circulate is perhaps the defining characteristic of the digital environment. In the past, messages had to be shared face-to-face or through print documents physically sent from one person to another. (Think of the idea of the "circulation" of a newspaper, referring to the measurement of how many readers a newspaper had.)  Message circulation increased and accelerated with television and radio.  But, even then, gatekeepers controlled the amount, speed, and movement of information via those media.  With the internet, however, both the speed and range of message circulation has increased again.  That is, a message can find itself instantly anywhere in the world, be subject to minimal gatekeeping (at least in free societies), be seen by limitless audiences, and be responded to by those audiences instantaneously.

Fragmentation means that a digital message can be broken into smaller pieces and those fragments can be reused, repurposed, or reformed in other digital messages.  That is, when composing messages in and for internet spaces, the resources of invention come not only from one's own internal thoughts but also from mixing and remixing what can be found in other messages already in circulation.  In the digital world, fragmentation is more common and more frequent than with messages that appear in print, for example.  This means that online speakers and audiences have more resources for thought and argument than in other contexts but at the same time may face more difficulty in making sense of messages that have been mashed and mixed in ways not originally anticipated.

So, if lawyers’ online public commentary is both a unique genre of legal writing and a digital rhetoric, what questions might we ask about the challenges and opportunities digital legal commentary presents?  

First, we might ask questions about the resources available to lawyers in the digital space.  What methods and sources, unique to digital rhetoric, are available to lawyers who want to be commentators in digital spaces?   Are/should any of those methods be ethically off limits to lawyers?  Conversely,  how might we adapt traditional rhetorical resources and approaches to apply to digital public commentary about the law?  For example, how do our traditional ideas about effective organization, style, and delivery apply in the digital space?  

Second, we might ask questions about the quality of lawyers’ messages and the risks posed by message fragmentation and rapid circulation.  What concerns for accuracy and influence of the lawyer's message do rapid circulation and fragmentation present for the lawyer?  Is misuse and misinterpretation of message fragments inevitable?   If a lawyer's commentary on a legal issue is broken apart and is re-used in ways the lawyer did not foresee, what are the ethical and rhetorical implications for the lawyer?  How do lawyers influence the limitless audiences that may encounter all or fragments of the lawyer's message?

Finally, we might ask questions about the a lawyers' duties in the context of digital rhetoric.  If lawyers are supposed to be public-citizens educating the public on legal issues, do lawyers have an obligation, not just an opportunity, to use digital rhetoric for this purpose? Must lawyers be rhetorically "competent" in digital public commentary, and, if so, what does fulfilling that duty look like?  

These questions demonstrate that the digital space presents new challenges and opportunities for lawyers as well as new ways of thinking about what what forms of persuasion are effective and appropriate for legal commentary in a digital world. These questions are worth thinking (and writing) about as digital communication spaces become even more prevalent and lawyers participate in them more.  Your thoughts are welcome in the comments below.

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

 

November 14, 2019 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric, Web/Tech | Permalink | Comments (0)

Friday, November 8, 2019

The Weekly Roundup

 

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting

 

US Supreme Court Opinions and News:

  • Next Tuesday, November 12, the court will hear arguments on the validity of President Trump’s decision to terminate the DACA program. More on the case here and a summary of the arguments by Amy Howe (SCOTUS Blog) here.
  • The court has released the January calendar, which begins on January 13, 2020.
  • A new book about a Supreme Court Justice has been released; this one about Justice Clarence Thomas. Author Corey Robin answers questions here about “The Enigma of Clarence Thomas” (Metropolitan Books, 2019).

Federal Appellate Court Opinions and News:

  • The Second Circuit ruled that Donald Trump's accounting firm must turn over the returns to Manhattan District Attorney. The three-judge panel rejected Trump’s argument that he is immune as president from criminal investigation while in the White House. Coverage by NPR and Washington Post.
  • An Alabama US District Court has blocked Alabama’s abortion law. The law was a near-total abortion ban that would have taken affect next month. The order calls the law clearly unconstitutional. AP News report.

Final Tidbit

The Massachusetts Appeals Court rules that, although improper, appealing to a jury’s “reptile” brain is not enough for a mistrial.  Law360 article here.

November 8, 2019 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 6, 2019

From Novices to Master Legal Writers

Much has been written about how people learn, including studies showing that people move from being novices to masters, passing through various stages along the way.[1]  When learning new skills, novices act with a “rigid adherence to taught rules or plans” and use “little discretionary judgment.”[2]  As they move toward expert and mastery status, they no longer need to strictly rely on “rules, guidelines or maxims.”[3] They have a “vision of what is possible,” they have an “intuitive grasp of situations based on deep, tacit understanding,” and they can improvise.[4] 

Moving from novice to master in any field at any skill typically requires a person to learn fundamentals before learning to manipulate or vary the fundamentals to become more effective at the skill.  For example, when students are taught to form letters at an early age, they are taught to draw the lines of the letters in a particular direction and to match model letters exactly.  Only after mastering the fundamentals of drawing letters do students begin to vary the precise models by adding personal touches that they think look better or flow better, yet still communicate the letters clearly.  Similarly, athletes first learn the fundamental skills of their sports and practice those fundamental skills extensively.  As these athletes practice and learn more about their sports and move toward mastery, they begin to improvise to perform the skills in unique ways that elevate the athletes’ performances to expert or master levels.  Varying the technique of performing a skill by someone who has mastered the skill is accepted and even admired when the person is performing at a top level.  If athletes are not performing effectively, though, coaches often insist that the athletes return to fundamentals to improve their games. 

Like students first learning to draw letters and athletes first learning the skills of their sports, law students and new lawyers must begin with fundamentals and work through the stages, from novice to master, when engaged in legal argument and writing.  Professors and lawyers working with these novices must exercise patience as they wait for these law students and lawyers to develop.  A common refrain from lawyers working with novice legal writers is that these novice writers do not write persuasively enough.  Perhaps this is because they are novices who have not mastered legal argument and writing sufficiently to improvise—to vary from the “taught plans or rules” and use their discretion.  They do not yet have a deep, tacit understanding of how far they can push their arguments beyond the existing law and how strongly they can tell the court how it should find or hold.  They are new to legal discourse; they do not know how bold or creative they can be.  They are like the children learning to draw letters who try to precisely follow the models of letters and do not dare to add an unnecessary flourish or variation.  They have not yet reached mastery. 

Frustrated by the work of novices, professors, lawyers, and judges sometimes criticize these writers for following formulas and not taking more license with their writing.  Novices even worry that their “formulaic” writing may be a problem.[5]  Legal writers are taught to use formulas, such as IRAC and CREAC,[6] to ensure that they provide the information necessary for a solid legal argument and analysis.  These formulas are used because they track a logical way to present information needed for legal arguments.[7]  Judges are looking for arguments that are supported by rules, explanations of those rules, and application to the facts involved in a case.   As these writers practice and learn more about writing legal arguments persuasively, they will become more adept at varying structures of their arguments.  They will learn when to depart from rigid adherence to taught rules when doing so will make their writing more persuasive.    

A suggestion for these novices and their professors and mentors is that the novices write a draft using IRAC or CREAC to ensure that they have included the necessary information.  Once a draft exists, the writer should then revise and edit the work to turn it from an accurate statement of the law and reasoning to a persuasive piece of advocacy.  This may involve deliberately altering the formulas employed.  For example, precedent case discussions might follow a rule as part of a rule explanation when the precedent case discussion is necessary to explain and interpret the rule.  On another point of law or argument, the precedent case discussion might follow the application of the rule to the case at issue.  Deciding to make this move says to the court that this is the rule, this is how the court should apply it to the facts, and the precedent case corroborates the argument being espoused.  This way guarantees that the court will not become distracted by a precedent case discussion when it comes before the argument involving the case at issue.  It also risks that the court might have wanted a fuller exposition of the law before the argument.  As the writer gains expertise and begins to master persuasive legal writing skills, he or she will become better at determining the best way to proceed in writing an argument, confidently moving away from rigidly following taught rules or plans when appropriate.   

Instructing the novice on the necessary parts of an argument and how to order the parts of an argument is valuable, as is emphasizing to the novice the importance of revising and editing.  Even though the novice will adhere to a formula initially, the novice will only improve as a writer if he or she is willing to experiment with revising to make arguments more compelling.   Novice writers tend to underestimate the value and necessity of revising and editing.  The best writers know that rarely if ever is the first draft the best draft.  Once a writer writes the parts necessary to make an argument, that writer should move the parts around, manipulate the language, and present the arguments in the best format to make the case to the court. 

So, to professors and supervising lawyers, expect to instruct students and new lawyers on how to make their writing more persuasive.  Expect to revise and edit their writing to show them exactly how to do this effectively.  Model the behavior you want to see in these novices.  And, with time, the arguments and the writing will be more persuasive as the writers move toward mastery.      

 

[1] See, e.g., Stuart E. Dreyfus, The Five Stage Model of Adult Skill Acquisition (June 1, 2004), https://www.bumc.bu.edu/facdev-medicine/files/2012/03/Dreyfus-skill-level.pdf.

[2] Raman K. Attri, 7 Models from Research Demystify Stages in Novice to Expert Transition (Nov. 18, 2017), https://www.speedtoproficiency.com/blog/stages-in-novice-to-expert-transition/.

[3] Id.

[4] Id.

[5] Mary Beth Beazley, A Practical Guide to Appellate Advocacy 97 (5th ed. 2019).

[6] IRAC: Issue, Rule, Analysis, Application, or Argument, and Conclusion.  CREAC: Conclusion, Rule, Explanation, Analysis, Application, or Argument, and Conclusion.

[7] See Beazley, supra note 5.

November 6, 2019 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric | Permalink | Comments (1)

Saturday, November 2, 2019

AI and Free Legal Research, Annotated

   Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research.  Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools.  Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar.  As new lawyers, especially if they start in small or solo practices, they will need access to free tools. 

   Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more.   Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance.  See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).

   There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery.  See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH:  Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com.  For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019). 

   In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org.  According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.”  Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe.  The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online. 

   Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel.  See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/.  A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned. 

   For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as:  “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.”  Next-Gen. Lgl. Res. Platforms, ACB.  In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:

(1)  “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.”  Judicata has free and subscription-based services.

(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”

(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”

   I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms.  I hope these sources are helpful to you as well.  Happy research, everyone!

November 2, 2019 in Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Wednesday, October 30, 2019

Butterick's Typography for Lawyers is Now Available for Free Online

image from images-na.ssl-images-amazon.com

In the appellate advocacy world, the holidays have arrived early.

As Ruth Anne Robbins put it in her classic 2004 article Painting with Print, "[p]ersuasion includes looking good on paper." So, at some point in our careers, a lot of appellate advocates start fretting about typography. And developing strong feelings about CAPS and fonts with the word "book" in them and the simple human courtesy of not hitting the space bar two freaking times after periods. 

As we should. We are still, in this stodgy profession, grinding our way through the Word Processing revolution. Much of what we learned about "typography" is stuff we picked up in seventh-grade typing class. And many of the conventions we learned about old-school brief formatting—caps for headings and underlining for citations & emphasis and a host of rules built around the fact that we mostly used monospaced fonts—make sense in a typewriter-driven world. And these relics persist in court rules and citation manuals because ... I mean, this is the legal profession. Relics persist.

So as we and enlightened courts embrace the benefits of painting with print, we need help. Typography is a complex bag of art and science. It's easy to fall back on typewriting-era conventional wisdom and default settings and fonts; it's easy to wander unguided into a maze of fonts and styles and emerge with a credibility-searing document in Comic Sans. If we're going to break free of old habits and defaults without generating over-engineered eyesores, we need a knowing guide.

That's where Matthew Butterick's Typography for Lawyers comes in. It's a fabulous book built on three core principles: (1) good typography is part of good lawyering; (2) legal documents are professionally published material and thus should be held to the same typographic standards; (3) any lawyer can master the essentials of good typography.

The book needs no hype from the likes of me. It's in its second edition, and it has been widely praised for years. In 2012, for example, the Legal Writing Institute honored Butterick with the Golden Pen Award. If you've been finding yourself dissatisfied with Times New Roman or passionate about using one space after punctuation, you've likely absorbed Butterickisms or relied on his reasoning to pwn Typewriter Holdouts on #AppellateTwitter. And Butterick's websites—both Typography for Lawyers and the more general Practical Typography—have always been remarkable, rich, free resources.

But here's what's new: the entirety of Typography for Lawyers is available for free online. There are, to be sure, ways to pay Mr. Butterick for his work. And we all should. But free is a powerful thing. And typography, for us, is a consequential thing. So dig in.

October 30, 2019 in Appellate Advocacy, Books, Legal Writing | Permalink | Comments (2)

Tuesday, October 15, 2019

Ethical Issues on Appeal

Have you thought about the ethical rules that apply to your role as appellate counsel? Ethical rules are probably not at the forefront of your mind when you handle an appeal, but the failure to consider and follow the ethical rules can have serious consequences for appellate clients and counsel. Here we’ll focus on three Model Rules of Professional Conduct that relate to one’s role as appellate counsel and survey instances when appellate counsel might have given more thought to these rules.

Model Rule 1.1: Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the knowledge, skill, thoroughness[,] and preparation reasonably necessary for the representation.

Carlyle Shepperson was a Vermont attorney who was charged with violating DR 6-101(A)(1) and 6-101(A)(2), which were forerunners to Rule 1.1. In re Shepperson, 674 A.2d 1273, 1273 (Vt. 1996). A justice of the Vermont Supreme Court had referred Shepperson to the state disciplinary board over the quality of his work product. Id. Shepperson entered into a remedial stipulation and agreed that he would not practice law until he completed a legal writing tutorial to “develop skills in legal analysis, persuasive writing techniques, writing organization, [ ] use of legal authority, proper citation form, and proper formatting for memoranda and briefs.” Id. at 1273-74. Shepperson later told bar counsel that he would not complete the tutorial and that he had left the United States for an indefinite time. Id.

Bar counsel filed a petition of misconduct and Shepperson filed a response but didn’t appear at the disciplinary hearing. Id. The Board of Professional Conduct recommended that Shepperson be disbarred. Id. The board found that Shepperson’s briefs:

were generally incomprehensible, made arguments without explaining the claimed legal errors, presented no substantiated legal structure to the arguments, and devoted large portions of the narrative to irrelevant philosophical rhetoric. The briefs contained numerous citation errors that made identification of the cases difficult, cited cases for irrelevant or incomprehensible reasons, made legal arguments without citation to authority, and inaccurately represented the law contained in the cited cases.

Id.

The board found Shepperson’s briefs were not competently prepared and didn’t meet minimal standards of competence; that Shepperson didn’t adequately prepare his work or give his work appropriate attention; and that he didn’t properly protect his clients’ interests. Id.

The Supreme Court of Vermont agreed with the board’s findings but issued an indefinite suspension. Id. In doing so, the court noted that Shepperson’s brief in the disciplinary matter showed his deficiencies. Shepperson failed to raise a legitimate legal issue and he didn’t cite a single authority to support his arguments. Id. at 636. Instead, his brief was a “harangue against the legal system” claiming “that the Board and this Court have violated his freedoms of speech and religion and limited his ability to think in diverse ways by dictating what is and what is not a proper legal argument.” Id. The court found that while Shepperson was free to represent himself as he pleased, he could not be allowed to continue to represent clients in a way that failed to safeguard the clients’ interests. The court declined to disbar Shepperson but did suspend him indefinitely.

Appellate counsel also has a duty of candor toward the tribunal. Model Rule 3.3 says:

(a)     A lawyer shall not knowingly:

          ***

          (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[.]

Gonzalez-Servin v. Ford Motor Co., 662 F.3d 931 (7th Cir. 2011) shows the importance of compliance with this rule.

Gonzalez-Servin involved consolidated appeals from orders transferring cases to courts in Mexico and Israel under the doctrine of forum non conveniens. One case arose from accidents allegedly caused by defects in Bridgestone/Firestone tires installed on Ford vehicles in Latin America. Id. at 933. The other claims concerned contaminated blood products. Id. The Seventh Circuit began its opinion by noting that it had consolidated the cases because each raised “concerns about appellate advocacy.” Id.

In the tire-defect case, the Seventh Circuit found that appellants’ counsel failed to cite adverse Seventh Circuit precedent in either their opening brief or their reply brief, even though the appellees cited the controlling decision in their response brief. Id. The court took the appellants’ failure to cite, “let alone try to distinguish” the adverse case as “an implicit concession that the circumstances of that case [were] ‘nearly identical’ to those of the [tire-defect] case.” Id.

In the blood-products case, the appellants filed their opening brief and then the Seventh Circuit issued two decisions that were adverse to the appellants’ position. Id. at 934. Although the appellees’ brief relied heavily on the newly issued adverse authorities, the appellants’ reply brief discussed one of the adverse cases “a little” and the other “not at all.” Id.

The court admonished:

When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it. We don't know the thinking that led the appellants' counsel in these two cases to do that. But we do know that the two sets of cases out of which the appeals arise, involving the blood-products and Bridgestone/Firestone tire litigations, generated many transfers under the doctrine of forum non conveniens, three of which we affirmed in the two ignored precedents. There are likely to be additional such appeals; maybe appellants think that if they ignore our precedents their appeals will not be assigned to the same panel as decided the cases that established the precedents. Whatever the reason, such advocacy is unacceptable.

Id. The court then said that “the ‘ostrich-like tactic of pretending that potentially dispositive adverse authority against a litigant does not exist is as unprofessional as it is pointless’” id. (quoting Mannheim Video, Inc. v. County of Cook, 884 F.2d 1043, 1047 (7th Cir.1989)) and illustrated its point by including these photos in its opinion:

Ostrich

 

Id.

While appellants in those cases didn’t violate Model Rule 3.3(a)(2) (because opposing counsel had disclosed the adverse authority), the court’s opinion makes clear that the better approach is to cite the adverse authority and try to distinguish it.

Finally, appellate counsel must be mindful of Model Rule 8.2(a):

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .

Swinka Realty Investments LLC v. Lackawanna County Tax Claim Bureau, 688 Fed. Appx. 146 (3d Cir. 2017) (unpublished) and its aftermath show the importance of following Model Rule 8.2(a).

Swinka arose out of a claim that state officials had violated the Fifth and Fourteenth Amendments in a tax sale. Id. at 147. On appeal, Swinka’s brief included statements accusing the trial court of contradicting itself; intentionally overlooking genuine issues of fact; creating false analysis; lacking understanding of Pennsylvania tax law; misstating the status of the law; padding its opinion with citations to irrelevant cases; trying to deprive the appellant of its rights; and other types of inappropriate conduct. Id. at fn.2.

The Third Circuit emphasized that appellants’ counsel had an ethical duty to avoid making false or reckless statements about the qualifications or integrity of a judge. Id. at fn.3. The court affirmed the trial court’s decision and said:

Swinka’s brief repeatedly casts aspersions on the District Court’s analytical ability. The aspersions lack substance and utterly fail to advance Swinka’s legal arguments. As such, these unprofessional comments reflect poorly on Swinka’s counsel. When counsel wastes ink attacking the ability of able District Courts instead of advancing his or her client’s legal arguments, we smell more than a hint of desperation and confusion about how an appeal works. It is an unbecoming way to brief an appeal.

Id. at 148-49.

Swinka’s counsel was referred to his state’s disciplinary board and he received a public reprimand for violating Rule 8.2(a). http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/186DB2018-Vinsko.pdf?cb=1.

We must be aware of the Rules of Professional Conduct when we represent clients on appeal. We must be sure that we provide competent, zealous, representation in a way that respects the integrity of the courts and our profession.

October 15, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (1)

Sunday, October 6, 2019

Antonin Scalia – One of the Greatest Writers in the Supreme Court’s History

Regardless of one’s opinion of former Supreme Court Justice Antonin Scalia’s jurisprudence, few would dispute that Justice Scalia was an extraordinarily talented – and persuasive – writer. Indeed, Charles Fried, a professor at Harvard Law School, lauded Justice Scalia as possessing “a natural talent” of “the kind which distinguishes a Mozart from a Salieri.”[1] Additionally, in an article published by the Journal of the Legal Writing Institute, attorney Yury Kapgan stated that Justice Scalia’s opinions are “as close to literature as court opinions come.”[2] In fact, Justice Elena Kagan stated that, when writing her opinions, she imagined “Justice Scalia on her shoulder.”[3]

What made Justice Scalia such an outstanding writer, and how can Justice Scalia’s writing style help law students and lawyers improve their writing skills?

1.    Justice Scalia Wrote Clearly and Concisely

Even a cursory review of Justice Scalia’s opinions reveals that Scalia wrote in a clear, concise, and compelling manner. As such, Justice Scalia eschewed language that was esoteric or convoluted, avoided including extraneous or unnecessary facts, and asserted legal arguments with clarity and precision. In so doing, Justice Scalia’s opinions were easy – and often entertaining – to read, and written with a persuasive force that was difficult to dismiss. Most importantly, Justice Scalia’s writing underscores the importance of using straightforward, accessible language, making clear and direct arguments, and including only facts and law that are necessary to support such arguments.

2.    Justice Scalia Wrote for the Audience

Justice Scalia understood that to maximize the persuasive value of a judicial opinion or legal brief, a writer must understand and accommodate the audience to which such opinion or brief is directed. As Justice Scalia stated:

            I think there is writing genius as well--which consists primarily, I think, of the ability to place oneself in the shoes of one's audience; to assume only          what they assume; to anticipate what they anticipate; to explain what they need explained; to think what they must be thinking; to feel what they must be feeling."[4]

For example, if an attorney is drafting an appellate brief, the attorney must be aware that appellate judges (and their clerks) read countless briefs on a weekly basis and therefore value briefs in which the attorney: (1) clearly states the remedy that is sought; (2) clearly and concisely sets forth the legal arguments supporting the desired remedy; (3) includes only relevant facts and law; (4) effectively organizes the facts and legal argument; (5) avoids unnecessary repetition; and (6) addresses pertinent counterarguments. Similarly, if an attorney is drafting a letter to a non-lawyer client, the lawyer must use easy-to-understand language and straightforwardly explain complex legal principles.

Ultimately, if law students or lawyers fail to consider their audience (e.g., a judge or client) when drafting a legal document, the reader may be distracted by the lawyer’s unclear, unorganized, or substandard writing, which will detract from the document’s persuasive value and undermine the lawyer’s credibility. Put simply, it’s not merely what you say, but how you say it, and who you are saying it to, that matters

3.    Justice Scalia Understood the Importance of Rewriting and Revising

Justice Scalia – and all excellent writers – embrace writing as a process and recognize that great writing is a product is rewriting and revision. As such, a writer’s first draft is never the final draft because it is only through the rewriting and revision process that a legal document or judicial opinion becomes truly persuasive and impactful. Justice Scalia summarized his approach to writing as follows:

I believe I was set on the road to good writing during my first year at Georgetown College. I had a young professor for English Composition whose name I still remember, so much angst did he bring to my freshman year. P.A. Orr was a Canadian, and a damned hard grader; and he gave a writing assignment every weekend. I was not accustomed to getting the B minuses that I received on my first few assignments, and as a consequence every weekend of my first semester I devoted many nervous hours to writing and rewriting. I am grateful to this day."[5]

Moreover, when teaching legal writing at the University of Virginia School of Law, Justice Scalia echoed these sentiments and stated as follows:

What I hope to have taught (in one semester) were the prerequisites for self-improvement in writing, which are two things: (1) the realization (it came upon some of my students as an astounding revelation) that there is an immense difference between writing and good writing; and (2) the recognition that it takes time and sweat to convert the former into the latter."[6]

Simply put, to become excellent advocates, lawyers must embrace writing as a process and accept that rewriting is the essence of great writing.

4.    Justice Scalia Understood that Great Writing Reflects Great Thinking

Great writing, as Justice Scalia emphasized, reflects great thinking. As Justice Scalia stated, "I do believe … that there is at least this connection between good writing and intellect: it is my experience that a careless, sloppy writer has a careless, sloppy mind."[7]  An excellent brief, for example, persuades the reader through the sheer force of logic and reason, not fancy words and flowery prose. In essence, great writers also have great minds.

5.    Justice Scalia Eschewed Rigid Prose In Favor of a Conversational Style that Engaged the Audience

Justice Scalia’s judicial opinions, particularly his dissents, were written in an engaging and conversational style that focused readers on the substance of Justice Scalia’s arguments and maximized their persuasive value. Consider this passage from one of Justice Scalia’s concurring opinions:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon [Supreme Court precedent] stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last term, was, to be sure, not fully six feet under.[8]

As the above passage demonstrates, Justice Scalia used vivid prose to communicate with his audience in a relatable manner, capture the audience’s attention, and underscore the logical force of his arguments.

Ultimately, Justice Scalia’s approach to writing can be described as “[p]utting yourself in your reader's shoes. Practice. And putting in the time. These are the three essential lessons that Justice Scalia learned over a lifetime of writing.”[9] Not surprisingly, “at his death … even his detractors were happy to concede the largeness of his writerly gifts [and] [a]nyone who has spent pleasant hours with his judicial opinions will find it possible to imagine Scalia, in another milieu, becoming a distinguished writer of almost any kind.”[10]

[1] David Lat, How Justice Scalia’s Writing Style Affected American Jurisprudence, (Nov. 21, 2016), available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.

[2] Jeet Heer, Antonin Scalia is the Court’s Greatest Writer, (June 26, 2015), available at: https://newrepublic.com/article/122167/antonin-scalia-supreme-courts-greatest-writer

[3] Lat, supra note 1, available at: https://abovethelaw.com/2016/11/how-justice-scalias-writing-style-affected-american-jurisprudence/.

[4] Glenn Leibowitz, To Write Well, You Don’t Have to Be a Genius (But You Have to Do This), (Nov. 10, 2017), available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html (emphasis added).

[5] Id. (emphasis in original).

[6] Id. (emphasis in original).

[7] Id. (emphasis added).

[8] Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (Scalia, J., concurring) (brackets added).

[9] Leibowitz, supra note 4, available at: https://www.inc.com/glenn-leibowitz/to-write-well-you-dont-have-to-be-a-genius-but-you-do-have-to-do-this.html/.

[10]Andrew Ferguson, The Justice as Writer, (Feb. 19, 2016), available at: https://www.washingtonexaminer.com/weekly-standard/the-justice-as-writer (brackets added).

 

October 6, 2019 in Appellate Advocacy, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Saturday, September 21, 2019

An Old Resource Is New Again—Searchable "Constitution Annotated" Now Online

Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated.  According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it."  The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time."  https://constitution.congress.gov/about/

The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers.  The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional. 

Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited.  Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only.  On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.

In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained:  “Unfortunately, the public facing version is not . . . lucid.”  The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen."  The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public.  Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students."  https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.

Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated.  While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested.   On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”

Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions.  Moreover, the pages are integrated nicely with the Library’s other resources.  For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.

For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource.  Hopefully, the continued updates will be quick and helpful as well.  Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.

September 21, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court, Web/Tech | Permalink | Comments (1)