Saturday, March 20, 2021
Law school can be a stressful experience, particularly in the first year. Indeed, during the first year, a significant amount of stress results from the uncertainty regarding law school (e.g., not knowing how to study effectively or how to prioritize tasks) and the pressure to perform well in your courses. The tips below will help to reduce the uncertainty, relieve the pressure, and ensure that your transition to and performance in law school will be successful.
1. Learn the Rule of Law and Do Not Brief Cases
As a law student – and as a lawyer – your primary responsibility is to know the relevant rules of law governing a particular legal issue and apply those rules to the facts of your case. Thus, from day one in law school, when reading cases, you should focus primarily on extracting the relevant rule of law from each case. For example, in New York Times v. Sullivan, the relevant rule of law is that to succeed in a defamation action, a public figure must show that an alleged defamatory statement was made with actual malice, namely, with knowledge of the statement’s falsity or with reckless disregard for its truth. You need not – and should not – focus on memorizing the facts of the case or the reasoning underlying the court’s decision, or on the concurring or dissenting opinions. Simply identify the rule of law because on your exams and in law practice, your primary responsibility will be to apply that rule (and precedent) to the facts of your client’s case.
As a corollary, do not brief your assigned cases (i.e., do not summarize the facts, procedural history, legal question, reasoning, and holding, or summarize the reasoning underlying the concurring and dissenting opinions, if any). This will require you to spend countless hours on aspects of cases that will neither be tested on the final examination nor improve your ability to apply the rule of law to a hypothetical fact pattern. Thus, just extract the rule of law and move on to the next case.
2. Use Commercial Outlines
Sometimes, particularly for first-year law students, it can be difficult to identify the rule of law in a specific case. Indeed, in your first-year courses, for each legal topic, such as personal jurisdiction, you will often read many cases that track the evolution and development of a specific legal rule. Your focus should be to identify the current and governing legal rule because that is the rule you will be required to apply to a hypothetical fact pattern on your exam. To assist you in doing so, commercial outlines, such as Emanuel Law Outlines, are an invaluable resource. These outlines provide you with the current rules of law for each subject that you are studying (e.g., criminal law, civil procedure, torts, contracts) and for every legal topic within that subject. By helping you to quickly identify the relevant rules of law, commercial outcomes allow you to begin – early in each semester – the critical task of preparing for the final exam, which you do by taking practice exams.
3. Take Practice Exams Early and Often – Under Timed Conditions
One of the best ways to excel in law school is to take practice exams, which your professor may make available to you or which you can find on the internet. Taking practice exams enables you to gain experience in, among other things, applying the relevant rules of law to hypothetical fact patterns, addressing counterarguments, and ensuring that your writing is well organized and follows the “IRAC” or “CRAC” structure (i.e., state your conclusion first, followed by a summary of the relevant rules of law, an analysis in which you apply those rules to the facts, and a conclusion). Taking several practice exams – under timed conditions – will prepare you effectively for the final (or midterm) examination and maximize your likelihood of obtaining an excellent grade.
4. Purchase the LEEWS Essay Exam Writing System
Just as commercial outlines will assist you in identifying the relevant rules of law, the LEEWS Essay Exam Writing System, which can be found at https://leews.com, will help you to perform extremely well on your exams. The LEEWS system teaches you, among other things, how to organize and structure your exam answer, how to identify legal issues in hypothetical fact patterns, how to address counterarguments, and how to distinguish relevant from irrelevant facts. LEEWS has been used by thousands of law students and is among the best resources available to maximize your performance in law school.
5. Your Research and Writing Skills Are Essential to Your Success as a Lawyer
Excellent research and writing skills – particularly persuasive writing skills – are essential to good lawyering. Thus, during your three years of law school, focus on mastering your research and writing skills, including when drafting real-world documents such as complaints, motions, and trial and appellate briefs. If you cannot write effectively and persuasively, you will struggle to succeed in the legal profession.
6. Develop Your ‘Soft Skills’
You can be the smartest and most talented law student in your law school, but if you’re a jerk, you won’t succeed in the legal profession. Being an excellent lawyer is not simply about knowing how to write persuasively and argue effectively. Rather, excellent lawyers know, among other things, how to cooperate and collaborate well with others, listen actively, accept constructive criticism, demonstrate humility, honesty, and decency, and learn from failure. Simply put, your personality influences how others perceive you – and impacts your likelihood of succeeding in the profession. So, don’t be a jerk. Don’t have an ego. Don’t gossip. Be someone who others want to work with – and who are happy when you walk into the office every day.
7. Take Care of Your Physical and Mental Health and Remember that Mindset is Everything
Law school is stressful, but the legal profession is infinitely more stressful. It’s particularly important during law school and in your life to take care of your physical and mental health. Regardless of your workload, take time each day or several days a week to exercise. Eat healthy food. Do things that make you happy. And make sure to address any mental health or other issues that may arise. If, for example, you are struggling with depression or anxiety, consult a psychiatrist or a psychologist. If you are struggling with a substance abuse problem, seek help. Don’t ignore it or feel shame. Taking care of your physical and mental health in law school will help you to develop the habits and coping skills necessary to succeed in the legal profession.
Most importantly, remember that mindset is everything. All of us encounter adversity and unexpected challenges in life. The key to overcoming them is you. If you have a strong mindset and an empowering thought process, you can – and will – cope effectively with adversity. And remember that your choices, not your circumstances, determine your destiny.
8. At the End of the Day, Only Happiness Matters
Don’t let law school or the legal profession consume you. Don’t judge your worth on whether you received an A in Civil Procedure or passed the bar exam on the first try. Don’t be affected by what others say about you. Don’t associate with toxic people. Ultimately, what matters is your happiness. So, put yourself first and do what makes you happy. Pursue your passions, whether in law or elsewhere. And remember that there’s more to life than the law.
9. Don’t Just Help Yourself – Help Others
Going to law school and becoming a lawyer provides you with a tremendous opportunity to improve the lives of other people and to fight for a fair and more just society. So, remember that your career isn’t just about your success – it’s about whether you used your talents to make a difference in the world.
Saturday, March 13, 2021
As all appellate practitioners know, legal research takes a great deal of practice. Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience. Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters. Illinois has a new program to connect law student researchers and pro bono attorneys.
The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services. https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/. As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.” Id. The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice. Id. The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.” Id.
PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.” https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/ Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).” Id. Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance.
Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.” Penelope Bremmer, PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).
Illinois modeled its Alliance on the similar University of Nebraska College of Law program. See https://law.unl.edu/ProBonoResearch/. Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “ Id. Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law. Id.
Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].” See id. Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.
Saturday, February 13, 2021
While some courts and law schools have returned to a form of in-person proceedings, many of us are still doing our best to represent clients or help students on Zoom. If you are struggling with Zoom, check out Briar Goldberg’s Ted Ideas on how to raise your video skills. Briar Goldberg, Ted Ideas: 7 Zoom mistakes you might still be making, https://ideas.ted.com/7-zoom-mistakes-you-might-still-be-making-and-how-to-raise-your-video-skills/ (Feb 9, 2021).
Additionally, if your spring involves teaching students to write trial or appellate briefs in pairs, Zoom now allows your students to select breakout rooms with their partners. See https://support.zoom.us/hc/en-us/articles/115005769646. I was hesitant to use this feature because I know students cannot always select their own room, especially students using iPads and some Chromebooks. See Clay Gibney, Tips for Zoom Breakout Rooms - Lessons Learned, https://www.sais.org/page/zoom_breakout_rooms (Nov. 2020). Like many Zoom hosts, I avoided the feature, and either spent the significant time needed to pre-assign participants to breakout rooms or let Zoom randomly assign participants to rooms.
However, if you want students to be able to meet and confer with their brief-writing partners during class, even in a larger class, you should give the choose-your-own-breakout-room option a try. I teach writing classes without a “Zoom TA” or IT person in the class, and yet I have sent my students to self-selected breakout rooms for partner meetings. For the best results, assign your student pairs breakout room numbers before class and ask in advance for names of students whose devices do not show the room choices.
Assigning Pair Numbers
When I assigned my students into partner pairs, I listed each pair on an Excel sheet with numbered lines, and saved the sheet to our class Google Drive. Before our first class using the partner meeting breakout rooms, I asked each student to double check the Excel sheet and make sure they knew their pair’s number.
Then, to make creating the rooms quick and simple during class, I did not take the time to name the breakout rooms. I simply asked Zoom to create the same number of self-selecting breakout rooms as my number of student pairs. In other words, for a class of 30 students, I created 15 choose-your-own-breakout rooms numbered 1 to 15.
Dealing with iPads, Chromebooks, and Web Zoom
Early in the semester, I had the students practice choosing their own breakout rooms during a persuasive writing exercise. We learned that about twenty percent of my students could not select their own rooms, either because of their Chromebook or iPad devices, the way they access Zoom, or both. See generally Gibney, Tips for Zoom Breakout Rooms, https://www.sais.org/page/zoom_breakout_rooms, at 2 (explaining students using the Web version of Zoom cannot select their own rooms).
When I let the students know they would need their pair numbers for our next class, I also asked them to notify me before class if their device did not allow them to choose their own breakout rooms. Therefore, I had a handy list and was able to quickly send these students to the proper rooms by manually assigning them.
Several students told me after class that they really enjoyed the time in partner breakout rooms. As much as we wish we could teach partner pairs to write briefs together in person, Zoom’s self-selecting breakout rooms at least allow us the chance to let the students meet together during class.
Tuesday, February 9, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the second post in the series.
Do provide a consistent, coherent argument:
- Do research the applicable law thoroughly.
We have an obligation to the court and to our client to conduct thorough and exhaustive research. Rule 1.1 of the ABA Model Rules of Professional Conduct says, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” This includes an obligation to update our research. Failure to research adequately can cause harm to clients and embarrassment to counsel as demonstrated in Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).
- Do investigate the facts diligently.
A corollary to the duty to research the law thoroughly is a duty to thoroughly investigate the facts of the case. The Federal Rules of Civil Procedure state that when an attorney signs a pleading he or she is representing that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]”
- Do plan and organize your writing.
Outlining saves time. The more time we spend planning and outlining our writing, the less time we spend writing and rewriting. Outlining helps us organize our arguments, see gaps in our reasoning, and see things that can be eliminated. And consider as the first step, using a non-linear outline. This is a technique espoused by Bryan Garner and discussed in his book, Legal Writing in Plain English. To use this technique, the writer starts with a circle in the middle of the page that contains the issue or purpose of the writing. Off of that circle branch sub-issues, facts, authorities, and parts of what might become the final document. Here is an example from Legal Writing in Plain English:
The writer then uses this nonlinear outline to create a linear outline. Nonlinear outlining allows the writer to see how various facts and arguments might better fit before committing to a final, linear outline.
- Do make sure that any legal theory you present is consistent with applicable law.
ABA Model Rule of Professional Conduct 3.1 provides, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” So, as part of our writing process, and along with our duty to thoroughly research the law and investigate the facts, we must ensure our legal theories are consistent with applicable law.
- Do use persuasive authority.
I have to assume that in this instance the authors of the Dos and Don’ts meant, “Do use binding authority.” We all want to find that magic case that is on “all fours” with our case. In those rare instances when we do, we should cite it. Of course, we all know how infrequently that happens. When we can’t find a case that is binding, then we have to turn to persuasive authority. But not all persuasive authority is created equally. Think about what authority is likely to be more persuasive in your jurisdiction. Ask yourself questions such as, is the jurisdiction that produced the authority in the same geographic region or federal circuit as mine? Has the court relied on authority from this jurisdiction in other cases? How often have courts in other jurisdictions relief on this particular authority?
- Do state clearly what you are requesting in motions and briefs.
Ask for what you want and consider asking for alternative relief.
 Fed. R. Civ. P. 11(b)(3).
Saturday, January 23, 2021
Many 1L legal writing professors begin the second semester using their favorite examples of persuasive writing. In addition to exercises on CRAC for crafting persuasive Argument sections, I use samples to show my students two key persuasive techniques: (1) catching a reader’s interest with a “hook” in the Introduction; and (2) using persuasive subheadings and fact presentations in the Statement of Facts. I have several great samples, including the well-known example from skater Tonya Harding’s International Olympic Committee filing. Harding’s lawyers introduced her request to be allowed to skate in the Olympics in three compelling words: “Tonya Harding skates.”
Of course, I am always looking for new samples. Many thanks to Professor Sarah Ricks, Distinguished Clinical Professor of Law at Rutgers Law School, for recently suggesting Legal Writing Institute List-Serv members read the beautifully-written Statement of Facts in an Opposition filed on behalf of Amazon Web Services in the Parler matter. In the Opposition to Parler’s Motion for a TRO, counsel for AWS, Davis Wright Tremaine LLP, uses plain language to engage the reader in the first line, and follows the Introduction with a truly persuasive Statement of Facts. See AWS Opp. to Parler's TRO Request. The Introduction and Statement of Facts from this January 12, 2021 filing are excellent examples of persuasive writing, albeit based on extremely troubling fact allegations.
Just as we instruct our students to do, the AWS Opposition begins its Introduction with short persuasive sentences catching the reader’s interest and summarizing AWS’s arguments in a straightforward matter:
This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler’s demonstrated unwillingness and inability to remove from the servers of Amazon Web Services (AWS) content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens.
Id. at 2. The Introduction then presents AWS’s claims without hyperbole, and distills the heart of AWS’s argument to one sentence, arguing Parler attempts to compel “AWS to host content that plans, encourages, and incites violence.” Id.
The Opposition continues with a Statement of Facts deftly using subheadings to summarize the facts and its overall argument. As we know, judges are incredibly busy, and advocates should use persuasive subheadings in Statements of Facts as a way to help busy judges understand the key facts from reading the Table of Contents or from skimming the brief. See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). The AWS Opposition Statement of Facts uses four brief subheadings to paint an overall picture of Parler as unwilling to limit disturbing content in violation of its contract with AWS:
- Parler Conducts the “Absolute Minimum” of Content Moderation.
- Parler Enters an Agreement with AWS for Web Hosting Services.
- Parler Repeatedly Violates the Agreement.
- AWS Exercises Its Right to Suspend Parler’s Account.
AWS Opp. to Parler's TRO Request at 2-5.
Finally, the Statement of Facts employs bullet points and quotes from the record to show Parler’s alleged abuses with precision. It takes only a few minutes to read the Statement of Facts, but AWS’s summary of the underlying matter stays with the reader. While some of the impact is no doubt based on the quoted Parler posts inciting sedition, rape, and murder, the calm, plain English structure and direct word choice also convey credibility and tell a compelling story. For example, under the subheading about content moderation, the Statement of Facts explains, “Parler prides itself on its hands-off approach to moderating user content,” followed by six supporting quotes from Parler executives. The quotes include sentences like, “’what we’ve decided to do is, let’s just not do any curation, no fact checking, let people do that on their own.’” Id. at 2-3. This method paints a clear picture of AWS’s fact contentions and persuades the reader AWS has accurately and carefully given us the whole story.
As appellate practitioners and writing teachers, we all benefit from reading each others’ work. I appreciate the suggestion from Prof. Ricks that we read the Statement of Facts in the AWS Opposition to Parler’s Request for a TRO, and I hope you also enjoy the brief’s persuasive writing.
Saturday, January 2, 2021
Many of my younger students come from collegiate writing programs which do not use Oxford commas. These students sometimes need convincing they should add what seems like an “extra” comma between the last two items in a series of three or more. This comma, known as a serial or Oxford comma, can change meaning. Therefore, I include the comma on my grading rubric and try to make my lessons about the comma connect to real-world examples as much as possible.
The dairy delivery drivers who won overtime pay because of a missing Oxford comma provide a great example of the comma’s utility. See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html. Many of us are familiar with the dairy drivers’ case, and their 2018 $5,000,000 settlement. The dairy's delivery contract clause on overtime wages did not include a serial comma, and thus did not limit the drivers' eligibility for some overtime pay. Along with a few fun, albeit morbid, memes about eating children and other relatives—"Let’s eat children” vs. “Let’s eat, children,” for example—I use the dairy case to help show the need for precision and punctuation. (For more laughs, really, I highly recommend one of my family’s favorite books: Lynne Truss, Eats, Shoots and Leaves: The Zero Tolerance Approach to Punctuation (2003), https://www.lynnetruss.com/books/eats-shoots-leaves/.)
Recently, Kelly Gurnett, an admitted “diehard Oxford comma loyalist,” updated her piece on the dairy drivers. Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/. As Gurnett explains, “For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’” Id.
While modern courts sometimes say they want to use more holistic and less formal language, we still must be precise and clear in contracts and legal writing. As Gurnett concludes: “if there’s one thing writers can agree on, it’s the importance of clarity. In some cases, an extra comma matters.” Id.
Last week, Pocket republished Chris Stokel-Walker’s article on serial commas. Chris Stokel-Walker, The Commas That Cost Companies Millions (July 22, 2018), https://getpocket.com/explore/item/the-commas-that-cost-companies-millions?utm_source=pocket-newtab. In the BBC Worklife piece, Stokel-Walker discusses the dairy drivers and other historic Oxford comma litigation, and notes the often-debated meaning of commas in insurance policies. As Stokel-Walker says, “for some, contentious commas can be a path to the poor house.” Id. He provides great examples to remind us about the need for precision.
First, Stokel-Walker cites the United States Tariff Act. As originally drafted in 1870, the Tariff Act exempted “fruit plants, tropical and semi-tropical for the purpose of propagation or cultivation,” from import tariffs. However, “for an unknown reason, when revised two years later, a stray comma sneaked in between ‘fruit’ and ‘plants,’” and “[s]uddenly all tropical and semi-tropical fruits could be imported without any charge.” Id. Congress ultimately revised the language, but the US lost $2,000,000 in tariffs (now about $40,000,000) in the meantime. Id.
Unlike my memes showing the errors in comma-less clauses about eating children or cooking grandpa, in the most extreme example Stokel-Walker cites, debate over comma placement was at the heart of a real-life death-penalty trial. Id. In 1916, the British government hanged Roger Casement, an Irish nationalist, under the 1351 Treason Act. Casement “incited Irish prisoners of war being held in Germany to band together to fight against the British.” Id. As Stokel-Walker explains, the case revolved around “the wording of the 14th Century Treason Act and the use of a comma: with it, Casement’s actions in Germany were illegal,” but if the court would read the act without the possibly-mistaken comma, Casement would be free. Id. Casement’s argument at trial was that “'crimes should not depend on the significance’” of commas, and if guilt for a hanging offense really depended on a comma, then the court should read the statute for the accused, and not the Crown. Id. Unfortunately for Casement, the court applied the comma and ordered him executed.
Whether we use the dairy drivers, memes, or Roger Casement’s matter, those of us teaching and mentoring new legal writers should do our best to convince them the Oxford comma is not “extra,” and can dramatically change meaning.
Happy new year!
Saturday, December 26, 2020
Law professors, lawyers, and judges have spent countless hours, whether in law review articles, textbooks, at conferences, or in continuing legal education sessions, providing advice regarding legal writing skills, legal analysis, brief-writing, and persuasive advocacy.
Yet, despite this helpful and practical guidance, law students often struggle to develop effective persuasive writing skills. Law graduates – and seasoned lawyers – frequently face criticism of their writing skills, and judges often lament the less-than-persuasive nature of many pleadings, motions, and briefs. And for good reason. Many trial and appellate briefs, for example, lack a cohesive structure, fail to tell a compelling story, lack precision and concision, violate grammatical rules, contain unnecessary repetition and information, and simply fail to convince the reader to rule in favor of the drafter’s argument.
Having said that, for law students and lawyers who seek to immediately and significantly improve the persuasive value of their briefs, there is one strategy that you should adopt from this day forward: The Rule of Three.
The Rule of Three is simple yet incredibly effective. In the Introduction (or Summary of Argument) section of your brief – and throughout your brief -- identify three specific reasons (and only three reasons) supporting the relief or outcome you seek. And state these reasons with specificity, clarity, and conciseness using First…Second…Third…
Here is an example:
Defendant – a well-known tabloid that lacks journalistic integrity – defamed the plaintiff when defendant published an article – to an audience of over one million readers – stating that the plaintiff “was a pathetic attorney who didn’t know the law, preyed on the vulnerabilities of unsuspecting clients, stole their money, engaged in unlawful hiring practices, and repeatedly made inappropriate advances to several clients.”
The defendant’s comments were defamatory for three reasons. First, the defamatory statements are false. Second, the defamatory statements damaged severely the plaintiff’s reputation and standing in the legal community. Third, the defamatory statements caused the plaintiff to suffer substantial, ongoing, and irreversible, harm.
After stating the three reasons supporting the remedy you seek, you should dedicate the next three paragraphs (in the Introduction or Summary of Argument) to relying on the relevant facts or evidence that support each reason. Thus, for example, you should draft one paragraph explaining why the statements were false. Then, you should draft a second paragraph explaining why the statements damaged the plaintiff’s reputation and standing in the legal community. Thereafter, you should draft a paragraph explaining why the plaintiff suffered reputational and economic harm. After that, draft a one-sentence conclusion stating “For these reasons, the defendant’s article was defamatory and thus entitles the plaintiff to damages.” Done.
Also, make sure that your point headings track the three reasons you identify at the outset of your brief. Doing so ensures that your brief will be cohesive, well-organized, and easy to read.
Why is the Rule of Three so effective?
1. The Rule of Three simplifies your arguments
Judges are very busy. They want to know – quickly – what you want and why you should get it. Briefs that confuse judges or make judges struggle to discern your legal arguments damage your credibility and reduce the persuasive value of your brief.
The Rule of Three avoids this problem. It makes it easy for judges to identify your arguments and evaluate the evidence in support of those arguments. As such, the judge will like you for making his or her job easier. The judge will view you as a credible attorney and give you the benefit of the doubt throughout the litigation. And, ultimately, your client will thank you when you win the case.
2. The Rule of Three organizes your arguments
The worst briefs are often those that go on…and on…and on…
The worst briefs read like a rambling manifesto that contains a barrage of loosely related thoughts that are jammed into long paragraphs with no separation of the concepts, arguments, or allegations. In short, it is chaos. It is easier to navigate one’s way out of a forest or maze than it is to navigate the arguments that such briefs present.
The Rule of Three eliminates this problem. It’s quite simple. Say, “First…” and state your argument. Say, “Second…” and state your argument. Say, “Third…” and state your argument. Then, in the next three paragraphs, explain each argument in a separate paragraph – and include each argument as a point heading. Doing so ensures that your arguments will be organized and presented clearly, understandably, and effectively.
3. The Rule of Three appeals to the audience’s cognition and psychology
Let’s face it: listening is hard. Paying attention for a prolonged period is difficult. Remembering what we have heard is often challenging. So how do you draft a brief or make an oral argument that will maintain the audience’s attention and convince the audience to adopt your position?
Studies in social and cognitive psychology demonstrate that people respond positively and attentively to arguments that are delivered in sets of three.
The rule of three is ubiquitous. Humans are both neurologically and culturally adapted to the number three and its combination of brevity and rhythm. We know from studies in neuroscience that our brains seek out patterns and finds the structure of three to be a complete set; it feels whole. Three is the least number of items in a series that make a pattern, and once you start looking for this pattern, you’ll see that it’s everywhere. In mathematics it’s a rule that allows you to solve problems based on proportions. In science there are three states of matter: solid, liquid, and gas. The Latin maxim omne trium perfectum (everything that comes in threes is perfection) echoes Aristotle and his Ars Rhetorica. There Aristotle posits that the most persuasive rhetorical appeals must rely on ethos, pathos, and logos. Extrapolate from that, and even simple storytelling and narratives have a simple structure of a beginning, a middle and an end.
Simply put, the Rule of Three embeds a cohesive structure into your arguments that enhance their readability, appeal, and persuasive value.
Ultimately, the Rule of Three reflects the principle that legal communication (and communication generally) is less complex than you think. It’s about common sense. Use the Rule of Three in your briefs and oral arguments. It’s that simple – and very effective.
Below are a few videos regarding the Rule of Three.
 Brad Holst, Want Your Presentation to Be Memorable? Follow the Rule of Three, available at: Want Your Presentation to Be Memorable? Follow the Rule of Three (mandel.com)
Friday, December 4, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- The Supreme Court has been asked to block the certification of Pennsylvania’s results in the 2020 presidential election. The case argues that absentee voting provisions were unconstitutional under the state constitution. Experts opine, however, that the Court’s scheduling order asking for responsive briefs one day after the Safe Harbor Deadline indicates that the case is unlikely to affect the election results. The Safe Harbor Deadline is the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in. See reports in USA Today and The Philadelphia Inquirer.
- The Court heard oral argument about the retroactive implications of their April decision on unanimous jury verdicts. In April, the Supreme Court ruled that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then, the ruling applied only to future cases; the court left unanswered the question of whether the decision should apply retroactively. The current case asks whether April’s decision should apply to prisoners in Louisiana and Oregon convicted in the past by non-unanimous juries. (These are the only states that allowed such verdicts at the time of the April decision). See reports from NPR, The New York Times, and The Washington Post.
- James Romoser posted a thread this week about the petitions the Court is considering this week.
Federal Appellate Court Opinions and News
- While acknowledging North Carolina’s “long and shameful history of race-based voter suppression,” the Fourth Circuit reversed a lower court and upheld the state’s law requiring voters to present photo identification before casting ballots. The court determined that the lower court had improperly considered the state’s “past conduct to bear so heavily on its later acts that it was virtually impossible for it to pass a voter-ID law that meets constitutional muster.” See the order and reports from The Washington Post and The Hill.
- The Seventh Circuit reinstated ex-Penn State President Graham Spanier’s 2017 conviction for child-endangerment. The ruling determined that the lower court improperly overturned the guilty verdict about Spanier’s mishandling of claims of sexual abuse against Penn State assistant football coach Jerry Sandusky. See the order and reports from the Philadelphia Inquirer and ESPN.
Beth Wilensky posted a thread on Twitter looking at the style and legal writing of an opinion of Third Circuit Judge Bibas. The thread points out the various ways that Judge Bibas employs good writing techniques, including using plain English and simple transitions.
Tuesday, October 20, 2020
Few words strike more terror into the hearts of appellate practitioners than the word "waiver." It is the monster that lurks under the bed and hides in the closet of those who strive to have issues resolved substantively on appeal rather than simply dismissed.
Waiver can occur at two primary levels: at trial and on appeal. But whenever it rises, it can cause nightmares for you and your client.
Waiver at Trial - The Monster Under the Bed.
At trial, waiver can arise in a variety of ways. It often arises from a failure to preserve error meticulously. Did you get a ruling but fail to make an offer of proof so the court knows what was excluded? Waived! Did you think that the ruling on your motion in limine was good enough, so you didn't renew the objection at trial? Waived! Did you object to an improper or omitted instruction but fail to offer an accurate instruction in its place? Waived! The list goes on and on.
And then there is the infamous Rule 50. Federal of Civil Procedure 50 was practically written by the boogeyman. Rule 50(a) provides that, at the close of evidence, a party challenging sufficiency of the evidence must move for judgment as a matter of law (JMOL) by specifically pointing out the law and facts that entitle that party to judgment. This is presumably so that the challenged party has an opportunity to correct any defect in proof. Rule 50(b) then provides that, after judgment, the sufficiency argument must be renewed if it was not granted the first time.
The traps caused by this two-step requirement have left many appellate practitioners with little to argue. If you did not move for JMOL at both points in the trial, your sufficiency challenge is waived. If your 50(b) points do not match your 50(a) points, many circuits will also find any differing points waived.
Recently, the Fifth Circuit recognized an entirely new Rule 50 monster. In Edwards v. 4JLJ, L.L.C., --- F.3d ---, No. No. 19-40553, 2020 WL 5628689 (5th Cir. Sept. 21, 2020), the appellant filed a JMOL and Motion for New Trial (MNT) on March 12, 2019. The trial court entered judgment March 27th without addressing that motion. The appellant then filed another JMOL/MNT after the judgment that was identical to the first, which was denied on May 20, 2019, and then filed a notice of appeal on June 12, 2019.
Appellants thought they had filed everything on a timely basis. They had filed the JMOL appropriately and avoided the Rule 50 traps. And they thought that filing the second JMOL/MNT had extended their deadline to file the notice of appeal until 30 days after it was decided under Rule 4. They even filed their notice of appeal a bit early.
But not early enough, according to the Fifth Circuit. Instead, the court held that the JMOL/MNT had been implicitly overruled by the trial court when it had entered judgment. Then, since the JMOL/MNT filed after judgment was identical to the implicitly-overruled motion, it was really a motion for reconsideration, and did not extend appellate deadlines. As such, the notice of appeal was not timely, and the court did not have jurisdiction over most of the issues in the case.
Waiver on Appeal - The Monster in the Closet.
Waiver on appeal can be even more insidious. In federal court, the issue technically becomes one of waiver (an intentional relinquishment) versus forfeiture (an unintentional omission). See Wood v. Milyard, 132 S. Ct. 1826, 1832 (2012). But whatever they call it, waiver can arise not only because the issue was not addressed at trial, but because it was not adequately addressed in the brief. Thus, some courts have found waiver where the issue was raised but only in a footnote, or in a page or less of briefing, or without citation to supporting authority. See Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253 (2002).
This is the type of waiver that can catch even the most astute legal writer. As professionals writing to a very specific audience, we listen closely when that audience speaks. And that audience repeatedly tells us that they are tired of reading our work. "Shorter is better" seems to be the recurring theme. I have even attended conferences where a justice will admonish the audience to stop citing them to authorities everyone knows, like the standard of review.
Shorter is better, but there is a shadowy place where short and concise transitions over into waiver. In the quest to cut the argument down to its finest form, we must not cut too deeply, lest the court determine there is not enough flesh left on the bones. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A skeletal 'argument', really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.").
Indeed, this is part of what makes briefing waiver (or forfeiture) so terrifying. What one justice finds pleasing may cause another justice to find waiver.
And then there is the timeliness of the argument. We consider it a general rule that issues not raised and decided in the trial court should not be considered on appeal, or that issues raised for the first time in a reply brief are forfeited. But the Supreme Court has been careful to preserve the discretion of courts to take up issues, and refuses to pronounce any such "general rule." See Singleton v. Wulff, 428 U.S. 106, 121 (1976).
As a result, one can never be sure when an issue that seems to be dead will suddenly lurch back to life. See Melissa M. Devine, When the Courts Save Parties from Themselves: A Practitioner's Guide to the Federal Circuit and the Court of International Trade, 21 Tul. J. Int'l & Comp. L. 329 (2013). If the court decides that the issue is important, or is required by justice, or involves "basic" issues of pure law, it can resurrect a dead argument sua sponte. Id. Even worse, if you did not address an issue because you considered it waived, you can be deemed to have "forfeited the forfeiture" or "waived the waiver." Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010).
Waiver and forfeiture really are boogeymen. They can ambush you at trial, trick you into making mistakes in your briefing, and even raise dead issues back to life. If you want to sleep well, keep the above issues in mind when preserving error or writing your next brief.
(Image credit: National Gallery of Art: Death and the Miser, c.1485/1490. Bosch, Hieronymus, Netherlandish, c.1450-1516).
Tuesday, October 6, 2020
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts.
Do Maintain Proper Focus:
- Do keep your purpose in mind while writing.
Why are you writing what you’re writing? What are you trying to accomplish? While the purpose of most of the writing of appellate advocates is straightforward—persuade the court and win your client’s case—we also write for other purposes. We write to clients, opposing counsel, co-counsel, court staff, prepare CLE materials, etc. We are trying to achieve different things and thus have different purposes, in writing to, or for, each of those audiences. We need to keep that purpose in mind for each thing we write.
- Do tailor your writing to your primary audience, but be aware that others may read what you have written.
We must reach our audience. We are writing for our audience, not ourselves. It’s quite easy to get caught up in our own brilliance and the clever turn of a phrase, but if our audience can’t understand what we’re trying to communicate, we’ve failed as writers.
We must strive to make our writing clear for our audience. One thing that creates ambiguity and confuses readers is vague pronoun references. When a writer uses a pronoun, she knows who or what the pronoun refers to, but it may not be clear to the reader. Take this example: “Ed and Sonny went to dinner and he ordered the fish sandwich instead of a steak.” Who ordered the fish sandwich? Because I’m friends with Ed and Sonny, I know Sonny would always choose a steak over a fish sandwich, but my reader wouldn’t know that. To make the meaning clear to my reader, I should write, “Ed and Sonny went to dinner and Ed ordered the fish sandwich instead of a steak.”
We must communicate clearly to our primary audience while remembering that everything we write has a secondary audience. Sometimes we run into difficulties when we neglect or forget about, that secondary audience. Then our writing may end up as an exhibit, as did this email from plaintiff’s counsel in an insurance-claim dispute:
This is an extreme example—although not the most extreme, even from this twenty-page exhibit. But the point remains, we must anticipate and consider a secondary audience when we write.
So, do identify the purpose of your writing and do keep your primary and secondary audiences in mind while writing.
 Alexa Z. Chew and Katie Rose Guest Pryal, The Complete Legal Writer, 5 (Carolina Academic Press, 2d Ed. 2020).
Tuesday, September 29, 2020
When I was in college, I had the opportunity to sit and talk for a bit with Ray Bradbury after he gave a lecture on writing. His first advice on writing? "Write the damn thing!" It will probably be garbage, he continued, but you need something to start with. Because, "Good writing is rewriting."
I later learned that Bradbury practiced what he preached. He had a note posted over his typewriter that just said "Don't Think!" But he also was a stickler for rewriting. When he first wrote "Something Wicked This Way Comes," the draft stood at 150,000 words. He then cut 50,000.
Recently, I was reminded of that conversation when, after learning of her passing, I re-read Justice Ruth Bader Ginsburg's interview by Bryan Garner in The Scribes Journal of Legal Writing. She was deeply influenced in her writing, she said, by one of her professors - Victor Nabokov. And Nabokov once said:
“I have rewritten — often several times — every word I have ever published. My pencils outlast their erasers.”
This training led Ginsburg to work "very hard" on every opinion she wrote, going through "innumerable drafts." Her goal was clarity, and that clarity took a great deal of work. Her oftentimes ideological opponent, and friend, Justice Antonin Scalia, agreed in his interview, admitting that he was not a naturally facile writer, and that he continued working on drafts until they took them from his hands.
I take a great deal of comfort from this exchange between Garner and Scalia:
BAG: Do you think it’s often true that the less facile writers, the ones who really struggle with it the most and put the most effort into it, are the best writers?
AS: I think it’s probably almost always true.
BAG: It just looks easy.
AS: It just looks easy. Yeah. Yes, I don’t believe in the facile writer. Maybe there’s one or two out there, but . . .
One of the greatest compliments I can be paid by a client is often accompanied by a criticism. I know I have done my job well when a client reviews a brief I have written and then expresses dismay when they see the time I spent on it, because the ultimate product makes everything seem so simple. But trust me, it just looks easy.
The picture at the top of the article is ancient. It is a painting from about 500 BC of a scribe using a wax tablet. Wax tablets had two great advantages at the time: You could write quickly on them, and you could even more quickly melt away the words you had written. The modern tablet is even faster at both tasks. Don't ever feel bound by that first draft when it can so easily be melted away and improved.
As I work on a brief this week, those reminders have helped me focus in on what matters. I am working diligently, because I am not, naturally, a facile writer. I am putting down thoughts on paper quickly, and then rewriting painstakingly.
Because, after all, good writing often requires requires a great deal of editing is re-writing rewriting.
(Image attribution: Pottery Fan: photo of Greek art created about 500 BC by Douris / CC BY-SA (https://creativecommons.org/licenses/by-sa/3.0))
Saturday, September 26, 2020
Once again, we find ourselves at the end of a week full of heavy news. While we mourn the passing of Justice Ruth Bader Ginsburg and the staggering loss of so many to COVID-19, and worry about the rampant injustice made even more evident this week, we might also take a mental break for something lighter. If you are looking for a fun piece on briefing to take your mind off the news of the day, check out this sample from the California Court of Appeal: https://www.courts.ca.gov/documents/2DCA-eFiling-Sample-Brief.pdf.
In a cheerful, light-hearted way, the Court’s sample brief helps pro se litigants, but also reminds us all to make our briefs simple and clear. See https://www.law.com/supremecourtbrief/2019/03/06/this-8-page-cert-petition-caught-the-justices-eyes-clarence-thomass-many-doubts-meet-the-last-supreme-court-crier/ (discussing a more “real life” example of short, clear writing in a successful eight-page cert petition). The sample also helps litigants include all opening brief sections required by the California Rules of Court.
For example, the Court’s Statement of the Case provides a truly brief summary of the key facts, with no unneeded detail or argument. In two sentences, the sample summarizes the parties’ status and introduces the important facts:
The Three Bears filed a complaint in August 2001 alleging Goldilocks had trespassed on their property by entering their home when they were not at home, consuming a meal and falling asleep in a bed. The complaint alleged that Baby Bear had suffered physical and mental damages as a result of being frightened upon discovering Goldilocks. (CT 1-4.)
The brief also shows proper record cites to the Clerk’s and Reporter’s Transcripts in all sections, something too often missing from briefs.
The sample brief continues with a very straightforward recitation of the facts. including the fun note Baby Bear’s treating doctor was an “expert bear cub psychologist, Dr. Dramatic.” In five paragraphs, the Court’s sample outlines the testimony from the parties, Dr. Dramatic, and a neighbor, Gloria Gardener. For example, “Goldilocks testified she was looking for a boarding facility to take a rest, the Bears' house was very large, there was no fence to indicate this was private property, the door of the house was open and there was a mat at the front door that said ‘WELCOME.’ (RT 25-26.)” Since Goldilocks “thought this was a commercial boarding establishment, as large amounts of food were set out as if for guests, “ she “looked for someone to ask about spending the night[,] saw several sets of chairs and beds all in different sizes (RT 27-28.),” and fell asleep.
As this image shows, the Argument section of the sample brief has three subsections, including the separate sections required in California and many jurisdictions on the standard of review and the elements of the action:
While the Court’s sample is not perfect, and I would remove passive voice and add more express application of the law to the underlying facts, the brief still follows a clear CRAC format. Finally, the brief concludes briefly, as all appellate writing should. Instead of an overly argumentative or detailed conclusion, the sample very quickly summarizes and then asks for specific relief: “Goldilocks respectfully asks that this Court reverse the decision of the trial court and vacate the award of damages.”
Hopefully, the fairy tale context of the Court’s sample will make you smile. But on a deeper level, the brief helps unrepresented litigants and law students with basic brief format. The Court’s brief also reminds experienced practitioners to always check local rules and keep our briefs as straightforward and simple as possible.
Saturday, September 12, 2020
Every year, I ask my students to read a variety of articles on the use of language, especially passive voice. For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was. See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).
This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless. Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less. Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.” But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons.
As Rockmore explains, we stress good writing for clarity. She notes: “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.” Rockmore, How Texas Teaches History. Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.” Id. For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id. Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.” Id. As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers. Id.
As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please). We should all do the same with our own appellate documents, even when our use of passive is less insidious. We’ll save words for more content, and we’ll communicate more clearly.
Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.
Sunday, September 6, 2020
In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.
Then, Judge Reeves let the officer off the hook.
Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.
By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation. The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever. Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search. To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”
Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.
To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.
The praise afforded to Judge Reeves’s opinion, however, should stop there. Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.” Professor Kerr further stated as follows:
My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’
For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.
More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.” Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law. The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?
Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”
Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.” But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong.
Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.
 Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)
 See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp
 See id.
 See id.
 Id. (internal citation omitted) (emphasis in original).
 Id. (emphasis in original).
 Jamison v. McLendon, 2020 WL 4497723, at *29.
Tuesday, September 1, 2020
Classical English Style, by Ward Farnsworth, is another must-have for the library of an appellate advocate. Farnsworth, who is Dean and John Jeffers Research Chair in Law at the University of Texas School of Law, has written an engaging, easy to read guide to English style that adds to his works on persuasion and rhetoric. The text includes examples, mostly from the eighteenth and nineteenth centuries from well-known stylists such as Abraham Lincoln and Frederick Douglas. It also includes examples from Shakespeare and the Bible alongside more modern examples from Franklin Roosevelt and Churchill.
Farnsworth begins, where we all must: Simplicity. “There are two ways to say almost anything in English: with little words or big ones.” The book discusses how the English language developed from words with Germanic or Saxon roots and words with French or Latin roots. Saxon words tend to be shorter and more direct and thus, should be preferred by writers. He provides a list to demonstrate:
Next, the author discusses word choice and rhetorical devices such as metonym and hyperbole and how to use those devices to great effect. He then turns to sentence structure and length and provides examples of the effective use of variation to engage and persuade. A discussion of passive voice includes examples of its effective use.
The final third or so of the text discusses rhetorical devices such as anacoluthon—a technique to challenge readers to think more deeply or to represent stream-of-conscious thought; rhetorical instruction and announcement; and cadence.
One thing the text lacks is annotations to the examples. While the text often discussed the use of techniques in the examples, it would have been helpful to visually highlight the use of different techniques in a few of the examples in each section to draw the reader’s attention to the technique. This is a small quibble, and perhaps reflects more on this author’s shortcomings than on the text.
Classical English Style will help improve both written and oral advocacy; Farnsworth writes in a clear concise style—himself a model of classic English style.
 Ward Farnsworth, Classical English Rhetoric (2016); Ward Farnsworth, Classical English Metaphor (2010).
Saturday, August 22, 2020
The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community. United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order. In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings. In form, the slip opinion has a great deal to teach us about writing.
If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion. The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.
Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing:
Clarence Jamison wasn’t jaywalking.1
He wasn’t outside playing with a toy gun.2
He didn’t look like a “suspicious person.”3
. . . .
Jamison, 2020 WL 4497723 at *1-2. Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.” Id. at *1 nn. 1-15. The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years. Id. at *1-2.
Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:
Clarence Jamison was a Black man driving a Mercedes convertible.
As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.
Nothing was found. Jamison isn’t a drug courier. He’s a welder.
Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.
Id. at *2.
The court finished the introduction with a traditional roadmap. Judge Reeves explained the overall role of precedent and stare decisis, stating: “This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.” Id. at *3. But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.” Id. Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction: “This has to stop.” Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).
In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity. Then, ending the slip opinion with a specific call to action, Judge Reeves charged us: “Let us waste no time in righting this wrong.” Id. at *29. At least one court has already cited the slip opinion. See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”).
Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity. But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.
Saturday, July 25, 2020
Tired of seeing yet another post on how to ______ [fill in the blank: teach, write, argue, live] in our new virtual reality? Exhausted from never leaving your home and Zooming all day? Me too.
In fact, I was reluctant to write one more blog on online writing tools. However, my efforts to add new virtual tools to my teaching arsenal introduced me to two peer review software systems I believe can help us in the classroom: Peerceptiv, https://peerceptiv.com/, and Eli Review, https://elireview.com/. These peer review programs make anonymous online feedback easy, and encourage the writers to learn by editing others. They also reminded me how much any law practice can increase attorney writing skills by using peer review. See, e.g., Kwangsu Cho and Charles MacArthur, Learning by Reviewing, 103 J. of Ed. Psych. 73, 84 (Feb. 2011) https://eric.ed.gov/?id=EJ933615
As an of counsel appellate lawyer at a large law firm, I often had the chance to be an “intermediate editor” who reviewed junior lawyers’ briefs before sending them on to the partners. While I had been using informal peer review in my adjunct teaching for a few years at that point, I did not truly see how much editing others’ work makes us better writers until I experienced the phenomenon in practice. When I noticed I was making the same annoying mistakes I’d been correcting as an editor, I knew my work for the junior associates was making me a far better writer. Eli Review has a nice blog post on this “giver’s gain.” https://elireview.com/2017/03/28/givers-gain/.
My positive reviewing experience prompted me to add more ungraded peer review in my teaching and made me an advocate for the review process with clients and supervisors. Like in-house moot court, the practice of adding an intermediate editor is not possible in every situation. However, if you practice in a large firm or agency, consider adding a layer of review by mid-level writers to young attorneys’ work. This review can actually save fees, by shortening partner review time, and can help create better briefs across the board. And if you are in a smaller practice or have no budget for formal peer review, think about the techniques you like in your opponents’ papers, and incorporate those into your own writing.
In the digital classroom, we can use technology to enhance the peer review process. Many thanks to Prof. Tracy Norton of the Touro Law Center for introducing me to Peerceptiv and for being incredibly generous with her time by running a Peerceptiv demo for the LRW community. Similarly, I send thanks to Prof. Brian Larson of the Texas A&M University School of Law, who introduced me to Eli Review and also spent an incredible amount of time helping the LRW community with an Eli Review demo. Neither Prof. Norton or Prof. Larson have any connection to these products, and I also have no affiliation with these companies and am just sharing their information to help others.
From Profs. Norton and Larson, I learned both programs ask students to submit a writing assignment online and then provide feedback on other students’ writing for the same assignment. Students follow a set rubric in their reviews, and instructors can include the quality of the reviews students provide as part of their writing grades. The whole process can be anonymous. Professors using these programs raved about the technical support and positive student feedback from both. Peerceptiv costs students slightly less than Eli Review, and both can be “textbooks” for your classes at less than $30 a year.
The genius in each product is the science and math behind the assessment scores and review prompts. Each product truly helps students grow as writers by combining the established science on peer review and some neat online features. The math and engineering majors in my home called the programs “elegant.”
For example, Peerceptiv has the peers give a grade of 1-7 on the assignment and complete a four-part review. Then, each student grades the reviews he or she received on a 1-7 scale. Peerceptiv then assigns an overall rating for the assignment of 1-7 based on a combination of the student’s writing score and reviewing score. The professor can set the percentages each score is worth, and the prof can also give reviews him/herself and assign a higher level of credit in the grade to his/her review. Peerceptiv docs points when a review or assignment is late. See https://www.peerceptiv.com/why-peerceptiv-overview/#curriculum.
If the Peerceptiv number system seems too much like the dreaded undergraduate “peer grading” to you, consider Eli Review. Instead of assigning a number ranking to a student's writing and reviews, Eli Review asks students to pull the most helpful comments out of their peers’ reviews and make an express revision plan saying how they will incorporate the comments. Eli Review does ask students to rate the quality of the reviews on a 1-5 star basis, with only truly exceptional reviews earning five stars. See https://elireview.com/learn/how/. This level of assessment forces the writer to give better reviews and thereby learn more about writing, but can help avoid concerns about someone other than a professor grading work.
This fall, I will use Eli Review for short writing like simple case illustrations, and then will progress to peer-reviewed trial brief argument sections in the spring. I plan to use Eli Review only for anonymous, ungraded work. My goal is to give students the “aha” moment I had when reviewing briefs as an intermediate editor, and to help them gain the skill of self-diagnosing writing problems.
Thanks for reading another note on online writing tools. I wish you all good health, and a safe trip outside sometime soon too.
Saturday, July 11, 2020
We are thrilled to welcome Professor Susan Smith Bakhshian of Loyola Law School Los Angeles as our guest author. Susan has taught LRW and doctrinal law for many years at Loyola, where she is a Clinical Professor of Law and Director of Bar Programs. She is the co-author of Clearing the Last Hurdle: Mapping Success on the California Bar Exam. This summer, she taught entirely online using Brightspace and Zoom. You can reach Susan at firstname.lastname@example.org.
Caution Ahead: Breakout Groups Can Fail
Breakout rooms are great. But. Wait for it. They can fail. Break out rooms are terrific for everything from a way to let students chat and get to know each other, to in class exercises and writing assignments. And the experience is usually great.
Breakout rooms are not a substitute for physical classrooms, but they can give students a few minutes to socialize, provide variety in instruction, and accomplish learning objectives.
So when do breakout rooms go wrong? Groups can go wrong a variety of ways. While the tech can fail, which is a new problem, the other failures are nothing new. A student may decline to participate fully. Group dynamics can unravel. Disputes can arise.
An ounce of prevention is worth a pound of cure. Groups need clear instructions to stay on track. Using a slide in class or posting a handout before class goes a long way to making sure students understand that breakout groups are real assignments and not a class break. By posting slides before class, shy or anxious students are able to preview the group assignment and more fully participate in class.
Pop in. Video conference software simulates walking around the room. Once students realize the professor might drop in the group, they stay on track. This feature is especially helpful when I see that the random assignment has created a group of several weaker students or one with too many natural leaders. I usually go to those groups first. Even if all of the groups are doing fine without any help, I also just like to say “hello.”
Require a deliverable. If the groups know going into the exercise that a written product is due or that anyone in the group may be called on, they will stay on task better. Formal and informal deliverables both work well. Ask for each group to craft an email to the professor, require a post, or ask the group to return to the full class ready to answer a question or present their best ideas.
For those who have not tried a breakout room, an easy, but effective assignment is to have the groups make a list of best (and worst) practices for online learning. They have great tips for each other ranging from natural lighting solutions to how to use the “hide my video” feature to get more comfortable being on video. This assignment works as an ice-breaker in an early class or anytime you want to cover professionalism. As attorneys, they will need to be proficient at using video conferencing software, even after a return to more live interaction. A quick mention that job interviews may be online gets everyone in the group more interested in discussing best practices.
Bottom line, breakout groups are flexible and effective in online teaching.
Tuesday, July 7, 2020
Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.
For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.
II. How to use visuals effectively.
To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.
From my survey, I have identified a few overarching lessons about effective use of visuals.
First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.
Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.
Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.
Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.
Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.
Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.
III. The future of visuals
While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.
Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link. But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.
Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be. One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”
Another scholar speculates that other embedded technology in briefs might include, among other things:
- Graphics Interchange Format, or GIFS;
- 360-degree panoramas (of accident scenes, etc.);
- Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
- Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.
As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.
If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,” podcast links, and even virtual reality experiences.
For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you!
 See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.
 See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.
 Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).
 See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).
 Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).
 Id. at 1693.
 See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); 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). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.