Appellate Advocacy Blog

Presenting Issues as an Advocate

Last week, I responded to a noticeably short opening brief in an interlocutory appeal that sought to make the issue a simple one. That brief mustered little authority and asserted a purely legal question reflected in the relevant law’s text. In framing the issue, the brief stated it neutrally as though the brief would provide a learned disquisition that would enable the court to answer the question, rather than advocacy of a particular result. Of course, the body of the brief pushed a singular point of view. The question presented, then, did not contribute to the advocacy.

Usually, advocates lose an opportunity when the issue presented does not itself suggest an obvious answer. Judges normally read the issue presented as the first clue about what the case concerns. My brief began with a “restatement” of the issue presented, which emphasized whether the issue merited an answer because of an underlying dispute about the facts. A court does not answer a pure legal question when the answer is merely advisory. The case concerned an immunity for one of two bases for liability. If the other party lacked eligibility for the immunity, as we contended, then the court, under its precedents, lacked jurisdiction to answer the question and should, as it had done in the past, dismiss the appeal as improvidently granted.

In restating the question to pose the problem that a central factual dispute still existed, I led the court into the first section of my brief, where I quoted the court’s own observation that “too often” courts grant review of a pure legal question only to discover upon briefing and argument that facts must first be established before the question becomes ripe. More substantive sections of the brief also worked in the unanswered question of eligibility as confounding to deeper questions about the statute as a whole and limits on the constitutional authority to promulgate the immunity.  

In restating the question as I did, I followed the age-old advice voiced again by Justice Scalia and Bryan Garner in Making Your Case: The Art of Persuading Judges: “A well-framed issue statement suggests the outcome you desire.”[1] They follow that statement with an example of the Court’s framing of the issue in Eisenstadt v. Baird, the once-again controversial case of whether Connecticut could prohibit the sale of contraceptives to unmarried people.

The authors note that Judge Posner thought the Court might have struggled more with an answer if the question presented were stated as:

We must decide whether the state is constitutionally obligated to allow the sale of goods that facilitate fornication and adultery by making those practices less costly.[2]

Instead, the Court presented the issue as:

If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.[3]

Both versions of the question presented suggests an answer. Still, there is a cognizable difference between them that advocates should recognize. The first version, drafted by Judge Posner, makes an appeal to an ideological predisposition by its language that may alienate some judges. A more effective formulation would present the same question in more neutral and less inflammatory terms, as the Court’s decision did. As Scalia and Garner remind us, “you are here to reason with the court and cannot do so successfully if you show yourself to be unreasonable.”[4]

 

[1] Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 83 (2008).

[2] Richard A. Posner, Law and Literature: A Misunderstood Relation 305 (1988) (quoted in Scalia and Garner, supra note one, at 84).

[3] Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

[4] Scalia and Garner, supra note 1, at 84-85.

Characteristics of the Best Appellate Advocates

The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.

1.    They are highly intelligent and analytical.

The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.

2.    They have the intangibles.

The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.

3.    They are objective in assessing the merits of an appeal.

The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.

4.    They know how to select issues for an appeal.

The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.

5.    They are exceptional writers.

The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.

6.    They are outstanding oral advocates.

The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.

7.    They are extremely thorough and methodical.

The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.

8.    They are confident.

The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.

9.    They win.

As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.

Storytelling for Appellate Writing: A Few Tips on Using the Theory of the Case

In the most recent ABA Journal, Chris Arledge discusses how well storytelling can assist in many aspects of trial practice.  See Making Your Case:  Storytelling Problems and Solutions, 104 ABA Journal 16-17 (Aug./Sept. 2022).  Arledge’s interesting article on applying the craft of “other professional storytellers—like novelists, journalists, advertisers and filmmakers” to trial practice reminded me just how much our job as appellate advocates is storytelling.  See id.

 

In the appellate and academic worlds, we have many great books and even conferences on using storytelling to represent our clients.  See, e.g., LWI’s co-sponsored Applied Legal Storytelling Conference, https://www.lwionline.org/conferences/eighth-applied-legal-storytelling-conference.  If you are just starting to incorporate storytelling into your writing, I recommend consulting these resources.  In addition, I can share some tips that are popular with my writing students to hone your organization by using key tenants of storytelling to connect all parts of your briefs.

First, make sure you take the time to write out a specific theory of the case.  Using storytelling well, either in objective inter-office memos or persuasive external writing, requires a writer to truly understand the theory of the case.  Often, my students with large scale organization issues struggle to state their theories of the case.  Integrating one theory from an introductory “hook” through a compelling Statement of the Case and to a cogent Discussion requires consistent use of the same girding theory.

Second, distill your points into an “elevator story,” not just to persuade, but to explain the problem and give your suggested solution using storytelling.  Lately, I have asked students to create an elevator story of a one-minute oral summary of their Discussion or Argument sections.  I explain I am not just asking for a persuasive “pitch,” but want a true summary of their points.  If they cannot do the story in one minute or less, I suggest they go back to their outlines, look for an overarching idea they can use as the theory of the case, and then apply that theory to all parts of their papers.  Once writers have a strong theory of the case, they can much more easily use ideas of character and climax from storytelling.

As appellate writers, our job is to tell the story of what went well, or poorly, at trial, and to show how our suggested result will give our story the desired result.  Stressing your theory of the case as the connection between all parts of your writing will help you employ storytelling more deftly to reach that happy ending.  

Putting the Audience First: The Writing Tactic of Restatement

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

Putting the Audience First:  The Writing Tactic of Restatement

In May, I wrote the post, Putting the Audience First:  A Perspective on Legal Writing.   In that post, I encouraged readers to adopt a perspective on legal writing that always—always—has at its core the goal of meeting the needs of the actual, imagined, and implied audiences of the document.  (If you haven’t yet read that post, I think it’s worth your time to read it before reading this one.)   In that post, I promised that June’s post would be about the tactics of an audience-first perspective.  Well, June turned out to be terribly unkind to my family; we had a family member with a serious, hospital-stay-causing (but temporary) illness.  So, with apologies, here’s the post I promised for June.

Audience-First Perspective, Effective Writing Choices

In May I wrote that a good legal writer imagines the audience and writes for that audience, anticipating needs and meeting them.  An even better legal writer recognizes that documents also imply an audience; that is, how the document is written suggests an audience for that document.  As such, the work of the writer is not just to anticipate the needs of an audience but to also create needs the writer wants the audience to have and then use the document to satisfy those needs.  Ultimately, writers that meet audience needs are more likely to influence those audiences.  Accordingly, I suggested that the legal writer’s prime directive is this: 

 In a deliberate way and in every writing choice, put the audience first.

This directive to put the audience first should lead the writer to identify and deploy writing tactics—the tools in the writer’s toolbox—that best satisfy audience needs.  One tactic that cuts across different types of documents and purposes for writing is the rhetorical tool of restatement.

Restatement as a Tactic of Audience-First Writing

Restatement as a writing tactic is a way of calling attention to a concept, point, or idea by stating that information in a different form, one that is often more convincing, clear, or both.  Restatement is a powerful rhetorical tactic for satisfying the needs of audiences because restatement can

• Emphasize important ideas;
• Enable the audience to more easily remember important ideas;
• Clarify concepts that might be confusing to the audience; and
• Add a gloss on concepts or ideas that convey emotion or theme to the audience.

Signposts should accompany restatements.  Good signposts for restated information include

• In other words
• That is
• Stated another way.

Each of these phrases put the audience on notice that what follows is the restatement of the same idea in a new way. (In general, it’s almost always true that you should put your reader on notice of your next writing move. That’s why transitions are so important to understandable writing.)

Examples of Restatement from Appellate Briefs

Here's an example of restatement in an amicus brief in Axon Enterprise, Inc. v Federal Trade Commission.  The question in this case is whether the federal district courts have jurisdiction to hear constitutional challenges to the FTC’s “structure, procedures, and existence.”  Pay particular attention to what happens in the second sentence below:

Thus, “if one part” of government “should, at any time, usurp more power than the constitution gives, or make an improper use of its constitutional power, one or both of the other parts may correct the abuse, or may check the usurpation.” Id. at 707–08. Each branch, in other words, must ensure that the others stay in their constitutional lanes.

This excerpt is a good example for seeing how restatement can be an audience-centered rhetorical tool.  The brief apparently uses restatement because the quoted language in the first sentence is somewhat complicated. This complication is in part because the quote is from 1791 and because the quote is addressing how the branches of government operate under the U.S. Constitution.  In some situations, writers would want to avoid a quote like this and paraphrase the ideas within the quote. The paraphrase is a “shortcut” for getting to the essential meaning the writer wants to convey when the original language is complex. 

So, why would a brief include a complicated quote?  One explanation is that a writer might think a quote is persuasive because quote’s author is meaningful to the brief’s readers.  That might explain the quote in this brief.  Here, the quote is from James Wilson’s 1791 lectures on law at the College of Philadelphia.  Wilson had participated in drafting the Constitution and had served as a United States Supreme Court Justice. His lectures addressed the U.S. Constitution and the way in which the federal government described within it operated. So, by including Wilson’s quote, the brief appeals to Wilson’s exact words as well as his ethos.

The brief keeps the original ideas in Wilson’s mouth, so to speak.  But by retaining the more complicated quote, the brief also creates a need in the audience to have clarity on what the quote means.  In this brief, clarity is accomplished with a short, punchy sentence that conveys the key point in a more emphatic and more memorable way and puts a gloss on the quoted language’s meaning:

Each branch, in other words, must ensure that the others stay in their constitutional lanes.

By using the phrase “in other words,” the brief signals to the reader that the sentence is a restatement.  Then the sentence restates Wilson’s quote in a more accessible way, by modifying a commonly used phrase, “stay in your lane,” to sum up what the quoted language directs the branches to do.  This restatement reduces complexity and it gives a reader a way to more easily remember the overarching concept about the roles of the separate branches.

 There’s also an emotional valence to the restatement—this is the gloss.  The metaphor of staying in one’s lane gives a modern vibe to an old idea.  Merriam-Webster says that “to stay in your own lane” “comes from football . . . where [it] is viewed as advice to worry about your own assignment and not take on the job of defending a different opponent, which can lead to blown coverages and chaos.” In addition, the phrase can mean to stick to your own area of expertise or to maintain your car in a particular lane of the highway.

Even if a reader doesn’t know these exact meanings, a reader is likely to feel the sense of orderliness and security that comes from staying in one’s own lane and getting the job done.  This feeling, perhaps, is the feeling the brief is hoping for in its audience—that it is good for each branch to ensure that the others stay within the confines of their own expertise.  As such, the restatement provides less complex and more memorable language that has an emotional “feel.”

Beyond satisfying the need of court audiences to easily grasp the content of briefs, restatement can be effective for speaking to other brief audiences.  Imagine the news headline that emphasizes the restatement:  Case asks whether branches must help others “stay in constitutional lanes.”  In other words, a simplified restatement could meet the needs of audiences to express a complicated legal idea in everyday language.

Here’s another example that presents a similar pattern of restatement.  This one is from the of the Brief for Petitioner in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Again, pay attention to the end of the paragraph.

Copyright ultimately rests on a “pragmatic,” utilitarian bargain: “[S]ociety confers monopoly exploitation benefits for a limited duration on authors and artists” to incentivize and promote “the intellectual and practical enrichment that results from such creative endeavors.” Leval 1109; see also Google, 141 S. Ct. at 1195 (noting that copyrights are granted “not as a special reward” to creators, but rather “to encourage the production of works that others might reproduce more cheaply”); Harper & Row Publishers, Inc. v. Nation Enters. 471 U.S. 539, 545 (1985) (copyright protection is “intended to increase and not to impede the harvest of knowledge”); supra at 4. In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

The Warhol case presents a question under copyright law’s fair use doctrine: whether Andy Warhol sufficiently “transformed” another person’s photographs when he used those photographs in his own artworks.  In the paragraph above, The Warhol Foundation’s brief makes an argument that copyright is not so much about the protection of artists and authors but about giving society the benefits of its citizens’ creative work.  The brief faces a bit of a challenge with this point; true, the precedents say that society is meant to benefit from copyright, but the precedents also say that creators are meant to benefit, too.  In other words, the first two sentences of the paragraph point in two directions at once, which makes it less clear what point the reader is to take away from that information.  But the brief does not allow that confusion to persist.  By invoking the “marketplace of ideas” metaphor, the brief emphatically guides the audience to focus in one direction, on society’s benefit: 

In other words, copyright protection for creators serves the ultimate end of securing for the public a rich marketplace of ideas.

Is there anything special about the “marketplace of ideas” as an element of restatement here?  Generally speaking, the marketplace of ideas is a powerful metaphor in American culture. As Schultz and Hudson note, the phrase is “perhaps the most pervasive metaphor to justify broad protections for free speech” and was invoked most recognizably in Justice Holmes’ dissent in the First Amendment case of Abrams v. United States in 1911.  A quick Google search shows that the metaphor also has broad, popular appeal as a shorthand for describing prevailing values about how ideas should circulate in public discourse.  For better or worse, the marketplace of ideas evokes a set of commitments and emotions that influence how readers might think about Warhol’s use of another photographer’s work.

Because of the strong pull of the “marketplace of ideas” metaphor, this brief provides a useful example of how a restatement has potential to create a need for a brief’s audience.  Here, I think, the use of the marketplace of ideas metaphor implies an audience that needs to see how arguments about fair use and copyright relate to the marketplace of ideas concept.  In other words, the marketplace of ideas may not have been on the audience’s mind until the brief suggested to the audience that the marketplace of ideas is relevant here.  The use of the metaphor in restatement cements that connection and sets up the opportunity for the brief to meet that implied audience’s needs.

The Recap

Restatement as a rhetorical tactic can help writers craft documents that are clearer and more understandable for audiences.  Writers can direct readers to what ideas are most important and distill for audiences the essence and emotional valence of complicated concepts. 

What do you think about restatement?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she did this summer, she presented a CLE on Modern Legal Writing at the South Dakota Bar Annual Conference. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

Tackling a New Area of Law on Appeal Without Fear

Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.

In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.

Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.

A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.

In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.

The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.

 

[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).

In Praise of Bryan Garner’s Approach to Minimizing Passive Voice

Many of my students believe I “prohibit” any use of passive voice.  I certainly discourage passive voice, especially in objective writing.  As I explained in past blogs, I even use E-Prime sometimes, avoiding “to be” verbs to assist with clarity.  As Bryan Garner explained in his 2019 Michigan Bar Journal piece:  “Stylists agree” passive voice is “generally weaker than active voice.  It requires two extra words, and the subject of the sentence isn’t performing the action of the verb--you’re backing into the sentence with the recipient of the action. And the actor either is identified in a prepositional phrase or is missing altogether.”  Bryan Garner, Eliminate Zombie Nouns and Minimize Passive Voice, 98 Mich. B.J. 34  (Dec. 2019).   

However, I also remind students passive can help occasionally, such as when brief writers deliberatively de-emphasize their clients’ acts with language like “the bank was robbed.”  Garner has nice notes on this as well, explaining passive voice “does have its place” where the “recipient of the action may be more important than the actor (e.g., the defendant was convicted)” or “the actor may be unknown (e.g., the building was vandalized),” or where “passive voice simply sounds better,” for example, like moving “a punch word to the end of a sentence for impact (e.g., our client’s bail has been revoked).”  Id. at 34.

As I pulled together fall reading materials for my incoming 1Ls, I was struck—again—by how much we can learn from Garner’s examples on spotting and removing passive voice.   Garner asks us to count the passive voice examples in this passage:

In Reich v Chez Robert, Inc, the court found that § 203(m) required three conditions to be met before an employer can lawfully reduce the amount paid to an employee by a tip credit: (1) the employer must inform each employee that a minimum wage is required by law; (2) the employer must inform each employee of the dollar amount of the minimum wage; and (3) the employee must actually keep the tips received. It is clear under the law that vague assertions of the restaurant’s compliance with the notice provision of §203(m) do not constitute compliance. Instead, testimony regarding specific conversations where the provisions of the Act were explained to an employee must be provided.

Then Garner says, “Guess what? Few law-review editors could accurately spot every passive-voice construction in that passage.”  Id. at 35.   Students who struggle to remove passives will rejoice reading this, but the true help in Garner’s article is the way he shows us how to edit even more precisely than those law-review editors.   

I especially like Garner’s explanation:  “From a mechanical point of view, passive voice has two parts: a be-verb (e.g., is, are, was, were) and a past participle (e.g., broken, sued, considered, delivered).”  Id.  Thus, we should “[w]atch for two things when trying to spot passive voice. First, some constructions that appear passive really just involve a past participial adjective: He was embarrassed. Now, if you make that He was embarrassed by Jane, then it is passive (because embarrassed then functions as a verb); but with embarrassed alone at the end, it’s just a participial adjective.”  Id. 

This “subtle point” can be lost on struggling students, but they can gain understanding with Garner’s second point:  “the be-verb may not actually appear in the sentence. It may be what grammarians call an “understood” word, as in the amount charged will vary (the full sense of the phrase is that is charged) or the fee set by the trustees (the complete relative clause is that is set).”  Garner tells us, “[t]hese constructions with implied be-verbs are indeed passive.”  Id.

Returning to the challenge passage, Garner says there are six passives:  “(1) to be met, (2) paid, (3) is required, (4) received, (5) were explained, and (6) be provided.”  Id.  Looking for these passives can be a nice group or in-class exercise, and students can gain understanding from reviewing this example together.   Garner notes we can all “take some extra credit” if we spot “paid” and “received,” as “they have understood be-verbs, to be paid and that are received.”  Id. 

Finally, I would ask students to re-write this passage, with the most direct language possible.  Students, and lawyers, can then compare their revisions to Garner’s: 

In Reich v Chez Robert, Inc, the court found that § 203(m) requires an employer to meet three conditions before reducing the employee’s tip credit. First, the employer must inform each employee that the law imposes a minimum wage. Second, the employer must say what that wage is. It isn’t enough for the restaurant to assert vaguely that it has complied with either requirement; the court will require clear testimony about specific conversations in which the employer explained the Act. Third, the employee must actually keep the tips.

Id.  Garner removed what he calls “zombie nouns” along with passive voice, and made the  “reader’s job” much easier.  Id.  Hopefully, this exercise will help you add clarity to your own writing, and give you an interesting tool to teach others.

Too Many (Foot)Notes

In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”

While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”

Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.

Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.

Bluebooking

A recurring discussion on #AppellateTwitter and #LegalWriting Twitter is the importance (or lack thereof) of proper citation format. A recent post said that time spent learning to cite properly was not time well spent. I don’t take the author of that post to mean that citations are unimportant, but the view expresses a writer-centric view of citations rather than a reader-centric view. As writers, and particularly as appellate advocates, we must take a reader-centric view of writing. So, let me explain why I think that time spent learning to cite properly is time well spent.

First, and most obviously, your reader needs to be able to easily find what you’re citing. Judges and their law clerks are busy people. Why make it more difficult for the people who you are trying to persuade to find your source? You must do the work so that they don’t have to.

Next, as Professor Alexa Chew explains in Citation Literacy,[1] citations provide the law-trained reader with important information about the weight of the cited authority.[2] Is it binding or only persuasive? Is it a recent case or well-settled law?[3] Is what is being cited from a concurring or dissenting opinion? All of those things matter to the reader. If you omit part of a citation, or worse, incorrectly cite a source, you’re depriving your reader of important information.

Finally, and as Professor Tracy L. M. Norton pointed out in a post responding to the original Tweet, judges and law clerks use adherence to proper citation format as a proxy for your diligence and attention to detail. I know this to be true from my experience as a law clerk and from talking to other law clerks and to judges. A writer who doesn’t take the time to put citations into proper format is often assumed to have neglected other matters in their writing. Because let’s face it, it doesn’t take much effort to format most citations properly. The answers are right there in the citation manual. You just have to spend some time looking them up.

That said, I don’t mean that you are expected to properly format every part of every citation. It won’t matter if the comma is italicized when it shouldn’t be. What I’m suggesting is that it’s important to do your best to properly format citations so that your reader will know that you pay attention to detail. Doing so will reflect well on you and your work.

Oh, and one practical tip. Don’t blindly rely on the “copy with reference” feature of your favorite online legal research platform. The citations produced by those features are not always correct. For example, the Supreme Court of Ohio has its own citation manual. The Ohio “copy with reference” feature of one legal research platform produces this citation for an Ohio trial court case: State v. Vita, 2015 WL 7069789 (Ohio Com.Pl.) The correct citation format is State v. Vita, Clermont C.P. No. 2015 CR 0071, 2015 WL 7069789 (Oct. 29, 2015).

 

[1] Alexa Z. Chew, Citation Literacy, 70 Ark. L. Rev. 869 (2018).

[2] Id. at 872-73.

[3] We’ll leave what “well-settled” law is for another day.

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

A Few Commonsense Tips on How to Persuade Judges (and People)

It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.

1.    Keep it simple, talk like a normal human being, and get out of the weeds.

If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.

After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:

Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.

This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:

Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.

Again, this isn’t perfect, but you get the point. Keep it simple and direct.

2.    Address the court’s questions and concerns.

Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.

Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:

Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.

Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.

Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:

Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?

Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.

That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:

The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.

This response, although not perfect, responds directly to the justice’s concerns.

3.    Acknowledge weaknesses in your argument.

Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.

The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.

Whatever.

That was bad.

Very bad.

And very damaging to her credibility.

4.    Be passionate and emotional (when appropriate).

It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.

5.    Be likable and relatable.

This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

• • More from Bloomberg

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

• • More from SCOTUSblog

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

• • More from SCOTUSblog

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

• • More from the Sacramento Bee

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

• • Details HERE

Putting the Audience First: A Perspective on Legal Writing

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

Putting the Audience First:  A Perspective on Legal Writing

A few weeks ago, I was invited to give a short dinner talk about legal writing to a group of federal district court staff attorneys and judges.  The talk was entitled “Audience-First Legal Writing.”  This month’s post is based on that talk.

Legal writing is always and almost exclusively at its best when it is audience-centered. That is, the best legal writers know that they can be most effective when their documents meet the audience’s needs.  Accordingly, the best legal writers write legal documents not for themselves but for the audience.  And the consequence of that commitment to audience is the knowledge that every rhetorical move and every writing choice contributes to the audience’s view on whether the writing is “good.”   

What an audience thinks is “good” legal writing changes with the purpose of and context for the document.  Much of the time, a writer can’t know with certainty what an audience will deem “good.”   Of course, the better the writer knows the specific audience, the more likely the writer can be successfully audience-centered.  But, even without this knowledge, legal writers can anticipate some common needs that audiences might have of a document.  Is the document understandable?  Accurate? A quick read?  Logically sound? Interesting?  Well organized?  Engaging?  Convincing?  In other words, writers are not without resources when it comes to anticipating and writing for audiences in ways that satisfy their needs.  But, without prioritizing an audience-centered view of writing, none of those resources can be brought to bear in a writing project.

As such, I’ll suggest that the legal writer’s prime directive is this: 

In a deliberate way and in every writing choice, put the audience first.

“Audience-First” Is a Perspective on How to Write

I notice that legal writing instruction—particularly in the context of continuing legal education—is often directed to the tactics that one can use to make their legal writing better. For example, “prefer active voice,” is a tactic of good legal writing.   Nothing is wrong with learning good legal writing tactics.  But those tactics aren’t all that useful without a perspective on or a strategy for deploying them.   

An audience-first approach to legal writing is that perspective or strategy.  An audience-first orientation toward the writing project can guide how one chooses which tactics to use to write a document.  In other words, having an audience-first approach to writing is way of being and seeing as a writer that will lead to effective writing choices.

Actual, Imagined, and Implied Audiences

The first goal of an audience-first legal writer is first understand the audiences to which one writes.  To start, a writer wants to get to know the actual audience of a document as well as one possibly can.  For example, if a writer knows the particular preferences or desires of the actual audience, that knowledge can play a big role in meeting those needs.  

But it’s tough to always know (and know well) the actual audience of a legal document.  In fact, I’d argue, that there is no one, “actual” audience for a legal document; audiences in legal writing are typically multiple.  For example, an appellate brief might find audiences in clients, opposing counsel, supervisors, clerks, judges, the press, and a host of legally interested internet surfers.  Moreover, even within an actual audience, like judicial clerks, for example, a writer may be unable to know the specific expectations, preferences, and needs of those readers. 

But lacking information about the actual audience does not leave a legal writer without options.  This is because a writer’s audience is not just the audience the writer can identify with specificity, but it is also the audience that the writer can imagine, based upon their educated guesses about that  audience.  Key to the imagined audience is that it is a composite audience, an idealized example of the people who will be reading the document.  Unlike the actual audience, the imagined audience represents a group of anticipated readers in terms of their collective goals and characteristics.  So, an audience-first approach means to imagining this idealized example and then writing for it.

Finally, an audience-first approach means being attentive to the audience that is implied in a document. That is to say, audiences are not only actual or imagined, but they are also the ones that the document itself brings into being. Think of it this way:  Actual and imagined audiences exist even if a text didn’t.  Implied audiences exist only because the text does.   

Unpacking the Implied Audience: Everything You Need to Plan the Most Epic Prom Ever

 An implied audience is one that is constructed by the document itself and can be inferred from analyzing that document. Writers imply an audience in a document based on how they decide to organize the text and describe the concepts within it.  In other words, when writers make choices about the writing, one can see in the document who the writer wants the audience to be. 

The idea of the implied audience can be seen as a perspective on persuasion that gives a legal writer tremendous power over a reader’s reception of the document.  Writing a document to not only address but also imply a particular audience results in content that can both create needs in the audience and then satisfy them.  In other words, implying an audience in a text can motivate a reader to become an audience with a need (perhaps one that the reader didn’t even know they had) that the document can satisfy.

I’ll use a nonlegal example of how implied audience works in a text to help simplify the analysis.

In March, Seventeen magazine published this headline on the front page of its website: “Everything You Need to Plan the Most Epic Prom Ever.”

There’s a good bit of implied audience at work in this sentence. 

First, the sentence implies an audience that is—or should be—interested in having a great prom experience.  This sentence not only attracts the attention of an audience already looking for information about a great prom, the sentence also constructs a prom-interested audience; it tells readers to be an audience with an interest in prom. In other words, the words of the sentence create an audience with certain needs; in fact, the sentence is not even subtle about this—it specifically says that “you” have a “need”!

Second, the sentence tells the audience that the website has what the audience needs; it has, as the title says, “everything.”  Keep reading, implied audience, to meet your (constructed-in-the-text) need for everything! 

Third, the title implies an audience who is willing to work at accomplishing this epic prom.  In other words, the text implies an active audience—one who will “plan” everything necessary to ensure this experience is fantastic.  By creating for the audience a need for action steps, the text sets up a particular relationship with that audience—one where the audience prepares to do something with the information they’ve learned.

Finally, the title artfully uses the word “epic.”  The word “epic” implies an audience of a certain generation—one that would use the word “epic”—and with certain expectations—very high ones.  The tone of the sentence might even suggest that the implied audience has a fear of missing out on all of prom’s “epic” possibilities.  This fear might motivate action--I, too, want the most epic prom ever—what do I need to do? At the very least, the sentence suggests, look at the website (and perhaps all of the advertisements?) for everything you need!

So, what should a legal writer, taking an audience-first approach, conclude about the implied audience from this analysis of Seventeen magazine’s website headline?  This sentence invites into being an audience that is probably in high school, is interested in prom, is expecting prom to be an amazing experience, is willing to plan, and is looking for exhaustive information on what to do.  This audience, and all its characteristics, is implied in the sentence; the sentence creates an audience who has needs, invites the reader to be in that audience, and implicitly promises that those needs will be met in the text that follows. 

As legal writers, we might ask ourselves—if one sentence can do that much work implying an audience and creating and satisfying its needs, what could we accomplish with all the sentences of a legal document?

A Recap and Some Questions

So, as a reminder, this post suggests that the best way to approach legal writing is to take an audience-first approach.  First, write to the audiences you know as well as the audiences you can imagine. You can do this by asking a few questions at the beginning of your writing process, the answers to which will guide your writing choices:

• What are the characteristics of the actual audience that will be reading your document? What will they need?
• Equally important, who is your imagined audience? What will the idealized reader need from the document?

Second, write with a conscious awareness of the audiences that your documents imply. Implying an audience gives you the power to be more persuasive by motivating readers to become audiences with needs you can satisfy through your writing choices.  To become more aware of the implied audience in your writing, ask

• What needs do you want the audience to have that can be met by the document?

Next Month:  Connecting Writing Tactics to the Audience-First Legal Writing Strategy

An audience-first perspective on legal writing can give a legal writer a useful strategy for writing effective documents that can appeal to and meet the needs of audiences.  The next step is to connect the audience-first strategy to the writing tools that writers already have in their tool boxes.  These tools are the tactics that the writer will use to satisfy the needs of the audience.  In next month’s post, I’ll connect some writing tactics to the audience-first approach.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. 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.

Minor edits made by the author on 8/1/22.

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

The “It-Cleft” Sentence: Grammar Choice, Persuasive Effect

Thursday’s Raw 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.

The “It-Cleft” Sentence:  Grammar Choice, Persuasive Effect

The Problem with “It Is”

Modern legal writing doctrine says this:  Almost never start a sentence with “it is.”  This advice has a good reason: “It is” at the beginning of the sentence often signals a throat-clearing phrase, a phrase that offers little information to readers and delays them in getting to the point of the sentence.  Over at his blog, Legible, Wayne Schiess describes a throat-clearing phrase as a “flabby sentence opener” that makes writing weak and less concise:  He gives two examples of throat-clearing phrases that start with “it is”: “It is clear that,” and “It is important to point out that.”  Both are empty openers.

What’s the problem with “it is” in the context of throat-clearing?  First, “it” is a “dummy” pronoun—a pronoun that points to no particular noun.  And “is” is a being verb that evokes little, if any, imagery or action.   So, more or less, “it is,” in the context of a throat-clearing sentence opener, says “nothing exists.”   Good job, legal writer.  What a great way to start a sentence for a busy legal reader who craves vivid detail, precision, and concision.   

Because of the characteristics of “it is” in the sentence-starting context, plenty of excellent legal writing instruction directs writers to find these phlegmy phrases and clear them from the informative writing the reader cares about.  Typically, I tell my students to use the “find” tool in their word processors to search for “it is,” and when the phrase appears at the beginning of a sentence, revise the sentence to get rid of the extra words.  But am I right?

Enter the “It-Cleft” Sentence

Not quite. The “it-cleft” sentence, which starts with “it is” or “it was,” is an exception to the rule.  Unlike throat-clearing, an it-cleft sentence can be used to enhance the persuasive effect of legal writing.  Because an it-cleft gives a writer another way to place emphasis on the most important idea in a sentence, it can be a useful persuasive writing tool.  

The “it-cleft” sentence is not a new idea.  Composition experts and linguists know and write about “cleft” sentences.  A cleft sentence is easily identified because the sentence’s clauses are “split” and then re-ordered in an unusual way. That is, the usual is upended to create a new point of emphasis. Typically, that point of emphasis is at the beginning of the sentence.  After a sentence is cleft, the sentence will start with “it” and followed by a being verb (i.e., is, are, was, were).  (Side note:  There are other options for starting a cleft sentence including “what” and “all.”)

It-Cleft Examples:  Before and After

Here are two examples, adapted from Supreme Court opinions:

Garcetti v. Ceballos, 547 U.S. 410 (2006).

• Non-cleft: The First Amendment secures public employees’ rights to speak as citizens addressing matters of public concern.
• It-cleft (emphasizing citizens speaking): It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).

• Non-cleft: The hostility surfaced at the Commission’s formal, public hearings.
• It-cleft (emphasizing location): It was at the Commission’s formal, public hearings that the hostility surfaced.

The examples show that the “it-cleft” gives writers an option for changing the point of emphasis in a sentence. In the first example, the emphasis is on the First Amendment law and what it says.  But in the cleft sentence, the emphasis changes to people—speaking citizens and public employees.   By moving the “speaking citizen” to the beginning of the sentence and then “pointing” at that language with “it is,” the reader’s attention is drawn away from a general statement of First Amendment law to a specific assertion about public employee citizen rights.  Although there’s no real difference between the content of the two sentences, the take-away of the sentence noticeably changes.

The mechanics and effect in the second example are similar.  In the non-cleft sentence, the emphasis is on the action--“hostility.”  But in the cleft sentence, the emphasis is on the location of the hostility—the “hearings.”   We might imagine that Justice Kennedy, who wrote the Masterpiece Cakeshop opinion, could have profitably included the cleft sentence to emphasize his point.  In Masterpiece Cakeshop, Justice Kennedy wrote that a state civil rights commission had violated the Free Exercise clause of the First Amendment by being openly hostile to the religion of a party before it. He said that hostile comments caused the Court to “doubt on the fairness and impartiality” of the commission’s adjudicative hearings.  Unlike in other cases where government representatives had made discriminatory remarks, the commissioners’ comments in Masterpiece were made in the adjudicative hearings that were both public and on the record.

Kennedy might have used the it-cleft technique to further emphasize that the location of the hostility—at the public, on-the-record, adjudicative hearings—mattered to his reasoning.  A cleft sentence would bring more attention to the location’s importance.

Three Suggestions for Using It-Cleft in Persuasive Writing

Here are three suggestions for using it-cleft sentences.

• Use an it-cleft to double-down on an important contrast. In the Masterpiece Cakeshop example, we might imagine a paragraph that used the it-cleft sentence in a sentence like this:

The Civil Rights Commission’s treatment of the party showed impermissible hostility toward the party’s sincere religious beliefs. That hostility did not just occur in the private comments of the Commissioners.  Instead, it was at the Commission’s formal, public hearings that the hostility surfaced.

In this example, the it-cleft adds extra emphasis to the contrast between the ideas in the last two sentences.  The writer first tells the reader where the comments did not occur; then, for emphasis, the writer focuses the reader on the location of the comments.  While the writer could have written, “Instead, the hostility surfaced at the Commission’s formal public meetings,”  the writer took advantage of the it-cleft to add extra emphasis to the contrast.

• If you can, simplify and shorten an it-cleft. An it-cleft is already a complex grammatical construction, so simplifying and shortening an it-cleft sentence can make the sentence more accessible. Take for example, the Garcetti sentence: It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees. The sentence effectively emphasizes the right to speak, but the sentence is a little clunky.  How about this?

It is the right as citizens to speak on matters of public concern that the First Amendment secures.

The sentence is not a great deal shorter than the original, but I like it better.  Admittedly, the language about the “public employees” is gone from the sentence.  But what if the context, rather than the sentence itself, supplied the necessary meaning?  Maybe that context would look something like this:

Public employees are more than government workers; they are citizens who are concerned with the issues facing their communities. It is their right as citizens to speak on matters of public concern that the First Amendment secures.

• Like other persuasive writing devices, use it-cleft sentences be used sparingly. It is the unique sentence construction that produces the persuasive effect.  (See what I did there? 😊) But the sentence can’t benefit from its novelty if the construction is over-used.

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

Lead with Your Strength

We all know that, with some exceptions,[1] we should lead with our strongest argument. But, it’s not enough to lead with our strongest argument—we should lead with our strongest positive argument. By that, I mean the strongest argument for why we should win, not our strongest argument for why the other side should lose. This can be particularly difficult to do when we represent the appellee because the appellant has set out their arguments and our first instinct might be to show why their arguments are wrong. But that’s not leading with our strength, it’s an attempt to show our opponent’s weakness.

Take this example from the appellees' brief in Welling v. Weinfield.[2] In Welling, the Supreme Court of Ohio was asked to recognize the tort of false-light invasion of privacy.[3] After first arguing a procedural issue, that the case had been improvidently granted,[4] the appellees began the substantive argument like this:

As noted by the Wellings in their opening brief to this Court, a majority of the jurisdictions in the United States have adopted the false-light invasion of privacy cause of action. Brief of Appellants at 8. In The Denver Publishing Co. v. Bueno (Colo. 2002), 54 P.3d 893, the Colorado Supreme Court noted that 30 states had adopted the false-light invasion of privacy theory as part of their tort law. Despite that, the Colorado Supreme Court rejected the tort because it overlaps defamation to such a large degree and because its adoption might have a chilling effect on First Amendment freedoms. This Court should do the same.[5]

See how the appellees referred to and agreed with the appellant’s brief (giving appellant’s argument credibility) and then highlighted the strengths of the appellant’s argument:

• a majority of jurisdictions have adopted the claim;
• the Colorado Supreme Court noted that thirty states had adopted it.

It’s not until the next to last sentence of that opening paragraphing that we learn of the appellees' positive arguments: the tort overlaps with defamation and recognizing the claim could chill free speech.[6]

Here is how I might re-write the opening paragraph to lead with why the appellees should win:

This Court should reject the invitation to expand Ohio law. Defamation and false-light invasion of privacy claims largely overlap. And recognizing a false-light invasion of privacy claim might chill speech protected by the First Amendment. Instead, the Court should follow the reasoning of the Colorado Supreme Court. That court acknowledged the states that had recognized the claim but refused to do so because of the overlap with defamation and the possible chilling effect on free speech. The Denver Publishing Co. v. Bueno, 54 P.3d 893 (2002).

How would you re-write the opening paragraph to lead with the appellees' positive argument?

[1] An example of when this rule wouldn’t apply is when there is a procedural argument that logic dictates be addressed first.

[2] 866 N.E.2d 1035 (Ohio 2007).

[3] Id. at 1053.

[4] Robert E. WELLING, et al., Appellants, v. Lauri WEINFELD, Appellee., 2006 WL 1860670 (Ohio), 16.

[5] Id. at 17.

[6] Id.

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge

In my LRW II classes last week, we reviewed persuasive Statement of Fact headings.  I repeated my usual points on making the headings a bit catchy, but completely honest and logical.  I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents.  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”). 

In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.

Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,

https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge.  As Garner reminded readers he:  “occasionally interview[s] long-dead authors.  Another name for it is active reading.  Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.”  In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court.  Id.  I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.

Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.”  The Justice’s hypothetical reply is especially helpful for all appellate writers to remember:  “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.”  Id.  As I told my students, a careful summary where parties agree can sometimes be helpful.  Garner notes Justice Rutledge might say: 

This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief.  It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains.  It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.

Id.    

 In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.”  Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect.  Id.  Garner explained Justice Rutledge’s point on dealing with adverse facts this way:  “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.”  Id. 

Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility.  Id.  Garner concludes his article asking for the Justice’s concluding thoughts.  The Justice’s hypothetical reply is:  “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.”  One great way to add interest is to give your court clear, concise, and interesting facts.

I wish you happy drafting.

[Sic] It, Fix It, or Ignore It? The Rhetorical Implications of Spotlighting Another Writer’s Error

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.

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

I’m teaching The First Amendment this semester, which means I’m reading very closely a lot of United States Supreme Court opinions on freedom of expression. (An aside:  One of my favorite opinions for a close read of persuasive writing is Justice Alito’s dissenting opinion in Snyder v. Phelps; although I largely disagree with him on his reasoning and conclusions in that opinion, the opinion is a great example of using details and evoking emotion in support of reasoning.)

I was closely reading the majority opinion in RAV v. City of St. Paul, written by Justice Scalia, when I noticed this sentence, in which the Justice describes Respondent City of St. Paul’s argument about why its Bias Motivated Crime Ordinance did not violate the First Amendment (Scalia, writing for the majority, found that it did):

According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.”

Appellate lawyers know the ALWD Guide to Legal Citation or The Bluebook: A Uniform System of Citation rules for using [sic].  If there is a mistake in a quotation, “such as spelling, typographical, or grammatical errors,” says the ALWD Guide, authors may use [sic] to indicate that the error is not their own but is instead part of the original quotation.  Alternatively, authors may fix the error themselves, using brackets to correct the original author’s mistake. (For more, consult ALWD Guide Rule 39.6, Indicating Mistakes in the Original and The Bluebook Rule 5.2, Alterations and Quotations Within Quotations.)

Knowing these rules, I must confess that I was distracted by the [sic] in Justice Scalia’s sentence rather than confident that I understood his meaning.  What exactly was Justice Scalia’s concern that [sic] was signaling?  Was he suggesting that “on” should have been omitted? Or was he saying that the right word to use here was “upon”? Or was he suggesting something else altogether?  And, I wondered, how did the misuse of “on” make a difference to his opinion?  Or to St. Paul’s argument?  Or to anything for that matter?  Was Justice Scalia drawing my attention to the error just for the sake of showing that St. Paul had made an error? And, if so, why would Justice Scalia do that? 

Scalia’s choice to use [sic] here rather than pursue some other alternative made me wonder:  Even if a legal writer may draw attention to another writer’s error by using [sic] rather than correcting the mistake, should the legal writer do so?  Answering that question requires thinking about not only about how to accurately signal a mistake in a quotation, but also about how [sic] influences the persuasiveness of the document and the reader’s perception of the writer.

The first thing to think about when considering whether to use [sic] is that [sic] has the potential to create unnecessary ambiguity and distraction. [Sic] means more than what the ALWD Guide or The Bluebook suggest.  That is, although it’s true that [sic] can mean grammar or spelling error, it can also mean the presence of unexpected language or phrasing.  The Redbook, in fact, suggests that [sic] can be used to indicate either an error or an “oddity” in quotation.  

Miriam-Webster’s usage notes give this example. The Toronto Maple Leafs are not, in fact, the Toronto Maple Leaves.  The name does not reflect a grammatical error but an unusual usage of the word “leaf.”  Thus, a writer quoting the phrase “Maple Leafs [sic]” isn’t indicating a spelling error (i.e., the misspelling of the plural form of ‘leaf’) but instead is indicating an unexpected or novel usage of the word “leaf.”  So, when a writer uses [sic], particularly where there isn’t an obvious error, [sic]’s meaning may be ambiguous to the reader.

 In the case of Scalia’s sentence, the error of “impact on” wasn’t obvious to me, and so I was confused and distracted by its use.  I thought perhaps he was pointing to a grammatical error that I didn’t recognize, or, now that I’ve checked The Redbook, I think maybe he might have been pointing out one of those “oddities” The Redbook refers to.   I’m still not sure.

 I researched what Justice Scalia might have meant when he wrote “impact on [sic].”  The Redbook told me that “impact” as a verb is of “questionable” use, and that better choices would be “affect” or “influence.” So maybe Justice Scalia was signaling this questionable use. But both the ALWD Guide and The Bluebook say that [sic] should follow the error, and the ALWD Guide emphasizes that [sic] should be inserted “immediately after the word containing the mistake.” So, if Justice Scalia was using [sic] to indicate this disfavored usage, then [sic] should have followed “impact” rather than “on.”

Regarding the preposition “on,” The Redbook suggested that “on” is a preposition that commonly relates its object to another word based on the concept of space. So, perhaps Justice Scalia was signaling that “on” was misused in the phrase “impact on the right of free expression” because the relationship between St. Paul’s ordinance and the right of free expression is not one of space.  If that were Justice Scalia’s concern, then perhaps he used [sic] to signal to the reader that a more deftly written sentence would have left out “on” and simply said “impact the right of free expression.”

But, even then, perhaps Justice Scalia was not signaling that “on” was an “error” to be fixed at all.  Maybe he simply meant that “impact on” was an unexpected usage or an oddity.  The Redbook offers that “[t]he use of prepositions is highly idiomatic: there are no infallible rules to guide you in deciding what preposition to use with a particular word (emphasis added).  If that’s the case, then, Justice Scalia’s [sic] might have been expressing that “impact on” is an unexpected or unusual usage in the sentence’s context.

Ultimately, I wondered why Justice Scalia didn’t just change “impact on” to “[affect]” if that was his concern.  Both The ALWD Guide and The Bluebook would have allowed him to do so. But I think I can understand why Justice Scalia might not want to change St. Paul’s specific word choice.  If he made that kind of change, he would be doing more than addressing a simple and obvious error in the text, as he would do if he changed a comma to a semi-colon, corrected a misspelling, or changed a singular verb to a plural one.  Arguably, by changing “impact” to “affect,” Justice Scalia might actually have altered the meaning of St. Paul’s argument ever so slightly.  And, because he was quoting St. Paul, changing meaning is a legitimate concern.

Even after my research, I’m still not sure what Justice Scalia had in mind with “impact on [sic].”  But I am sure that I was distracted by its use, and I focused more on [sic] than what Justice Scalia was saying about the merits of St. Paul’s argument.  I wonder what would have happened if Justice Scalia had just left the quote alone.  While I don’t have scientific proof for my suggestion, I imagine most readers would easily understand the general meaning of “impact on” as it was used in the St. Paul’s quote.  It seems that the use of [sic] in the sentence attracts the reader’s attention to an unimportant point and wastes the reader’s time.  

The second thing to consider when thinking about [sic]’s persuasive use is that note that [sic] can be interpreted as a sneer—it can, in a contemptuous way, needlessly call attention to others’ errors. Miriam-Webster’s usage notes refer to this as problem of “etiquette”; in the context of legal writing, we might think of it as a problem of professionalism. Miriam-Webster says that [sic] can be used to “needlessly mak[e] a value judgment on someone else’s language habits.”  Even Garner’s Modern English Usage says that [sic] can be used “meanly,” as a way to show the writer’s sense of superiority. The Redbook says, notably, that [sic] “should never be used as a snide way to highlight the errors of another writer.”  But Miriam-Webster points out that “sometimes pedantic condescension is precisely what [the writer is] going for.” Bottom line:  don’t use a “sneering [sic].”

In the context of writing persuasively in the law, I’d take the concern about the sneering [sic] a bit further:  A sneering [sic] not just about etiquette or professionalism; using [sic] to point out an error in a party’s argument can also represent an appeal to a logical fallacy, the ad hominem argument.  The ad hominem argument is a fallacious argument that gets its strength from undermining a logical, reasoned argument by attacking the character of a person making the argument. This usage might be popular in situations where a writer uses [sic] to implicitly suggest that the argument contained in quotation cannot be trusted because the quote’s author is incapable of writing well.  In other words, using [sic] can distract the reader from an arguments’ merit and instead implicitly suggest to the reader there is something untrustworthy about the argument because of the writing errors of the author. If it’s the case that the errors represent an untrustworthy argument, there’s nothing fallacious about using [sic]. But, when the legal writer knows that [sic] is an implicit attack on the character of another, than [sic] is a problem.

So, where does this analysis of [sic] leave the legal writer?  First, it should leave the legal writer with the sense that correcting errors in other people’s writing is not only an accuracy problem but also a rhetorical one. That is, when writers choose to use [sic] or not, they make rhetorical choices.  Moreover, it should leave the writer with the sense that [sic] can be either a helpful corrective or an unhelpful distraction, and that the writer needs to understand these potential rhetorical effects on the audience before making a choice about using [sic].

Here are some best practices for using [sic] to correct an error in the quotation of another writer.

• When possible, prefer not to use [sic]. Unless it really matters, don’t use [sic] to indicate an error or an odd or unexpected usage, I’d argue that Justice Scalia would have lost nothing—not accuracy, understandability, or influence--by leaving the quote from the City of St. Paul alone and avoiding [sic].  No reader would be confused that the phrase “impact on” was attributable to the City of St. Paul and not Justice Scalia.  And the phrase itself is not obviously “wrong.”  So, no harm, no foul.
• Prefer paraphrasing instead. If you can avoid quoting a passage with an error and a paraphrase would work just as well, do that.  I think Justice Scalia could have been just as effective in his writing if he had paraphrased St. Paul’s argument like this: “St. Paul argues that the City did not intend its ordinance to affect the accused person’s free expression . . . .” Would the reader’s experience have been worse if Justice Scalia had paraphrased that portion of the quotation? 
• If paraphrasing won’t work, prefer to fix the error. When an error must be corrected, or the error is distracting, correct it according to the ALWD Guide and The Bluebook rules rather than use [sic].  Frankly, correcting the error is a kinder, more professional thing to do. The Redbook agrees: “[I]t is better to correct those minor mistakes using brackets.” There are some instances, however, where correcting an error in a quote may not be the best option.  For example, you may not want to put your words in the mouth of your opponent.  In that case, [sic] might be best.  But, if the exact words aren’t that important, don’t quote the problematic content in first place.  Paraphrase instead.
• If nothing else works, use [sic]. If rigorous accuracy in representing the original quotation is a must, then use [sic].  For example, rigorous accuracy might be needed when quoting statutes.  Another situation that would call for using [sic] to indicate errors in a quotation might be when a legal writer is quoting written or transcribed witness testimony.  If altering the testimony might be viewed as unethical or deceptive, then use [sic].  But don’t use [sic] repeatedly to indicate the same error by the same quoted author; one [sic] should be enough to put your reader on notice of the repeated mistake.

Thanks for reading! What are your thoughts on [sic]?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. 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.