Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.
Sunday, May 31, 2020
Drafting an appellate brief (or any brief) is often a challenging and time-consuming endeavor. Among the best ways to ensure that a brief is of the highest quality is to adhere to the three stages of the writing process.
Specifically, the writing process consists of: (1) the drafting stage; (2) the rewriting stage; and (3) the revision stage. The tips below will help law students and attorneys through each stage of the writing process and, ultimately, maximize the quality of briefs and other legal documents.
I. The Drafting Stage
The purpose of the drafting stage is to put your story, ideas, and arguments on paper. As such, you should write freely and creatively. Do not attempt to produce a perfect or even well-written document. And never attempt to write and edit simultaneously because it will stifle your creativity, divert your attention from the substantive arguments that you want to include in your brief, and slow the writing process.
In so doing, understand that although the first draft may, among other things, lack flow and effective organization, contain grammar and style errors, be redundant, or contain poorly phrased sentences and paragraphs, these problems will be fixed during the rewriting and revision stages.
After you have completed the first draft, take a few hours or a day (if time permits) to reflect on what you have written, and ask another person to read your first draft. You will likely generate new ideas regarding, for example, how to present or refine particular arguments, what facts and arguments to include, and how to organize the brief. Indeed, these and other issues will be the focus of the rewriting stage. As author David Sedaris said, “[y]ou need to do the best that you can do, and then you need to take the best that you can do, and you need to rewrite it, and rewrite it, and rewrite it, and rewrite it.”
II. The Rewriting Stage
The purpose of the rewriting stage is to refine your first draft. During this stage, attorneys should focus on improving the structural and substantive aspects of a brief. This should include, but not necessarily be limited to, the following:
- Ensuring that the brief is organized effectively, which will likely require reordering specific paragraphs or sections of a brief;
- Improving the flow of your brief, which includes making sure that you transition seamlessly when presenting various facts and arguments and use subheadings where necessary to improve the flow and clarity of your arguments;
- Eliminating unnecessary repetition;
- Eliminating irrelevant facts;
- Considering whether you have omitted important facts or legal arguments. For example, you may have failed to address a relevant counterargument, distinguish an unfavorable case, or include a favorable fact; and
- Making sure that your paragraphs begin with a clear topic sentence that focuses on a specific issue and end with sentences that transition effectively to the next paragraph and section.
Importantly, lawyers (and writers generally) often perform several rewrites. And during the rewriting stage, you should print out and read aloud your brief because it will ensure that you discover errors or areas for improvement that you may not have otherwise noticed.
III. The Revision Stage
During the revision stage, you should concentrate on the smaller but equally important details of your brief. Put simply, the revision stage is where you perform a line and copy edit of your brief. This should include, but not necessarily be limited to, the following:
- Making paragraphs and sentences shorter;
- Varying sentence length;
- Eliminating complex or esoteric words, adverbs, and unnecessary adjectives;
- Ensuring that your brief contains no grammatical, stylistic, or spelling errors;
- Including transition words to ensure flow and clarity;
- Eliminating words that convey ambiguous or unintended meanings;
- Reducing the number of quotes;
- Deleting repetitive sentences;
- Eliminating cliché phrases and colloquial language;
- Ensuring that your brief is written in the active voice (for the most part);
- Using the CTRL+F feature to search for overused and unnecessary words; and
- Submitting your document to an online editing service, such as Grammarly.
Additionally, you should perform multiple revisions to ensure that you identify all errors and maximize the persuasive value of your brief.
Finally, you should never combine any of these stages. For example, if you combine the rewriting and revising stages, you will almost certainly fail to identify both large and small-scale problems with your brief and compromise your brief’s persuasive value. Lawyers who adhere to the three stages of the writing process will – and do – produce briefs of the highest quality.
Tuesday, May 5, 2020
Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana, which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style that are always smoldering on #appellatetwitter.
Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.” Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.
Garner co-authored Making Your Case: The Art of Persuading Judges, with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations. Of course, Garner argued for the use of footnoted citations; Justice Scalia, “disapprove[d] this novel suggestion.” So let’s review some of the pros and cons of both and then you decide which you favor.
But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority. The latter is important because it helps the reader evaluate the relative value of one authority as compared to another. We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted? So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.
Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority. Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.” This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.
Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation. So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S. 209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.
The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.” Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.
Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc., with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.
 No. 18-5924, slip op. (U.S., April 20, 2020).
 Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.
 Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418
 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).
 Id. at 132-35.
 Id. at 132-33.
 Id. at 133.
 Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).
 See id. at 881.
 Scalia & Garner, supra note 5, at 132.
 431 U.S. 209 (1977).
 Scalia & Garner, supra note 5, at 134.
 No. 18-1233, slip op. (U.S., April 23, 2020).
Sunday, April 19, 2020
In law school, students study legal doctrine in many areas of the law and spend a substantial amount of time reading case law, writing memorandums and briefs, and engaging in real-world simulations.
Of course, while the law is relevant to the disposition of any case, it does not often determine the outcome of a particular case. For example, statutes or constitutional provisions may be ambiguous and precedent may not adequately address the relevant legal question. Rather, the most important aspect of a case is the facts. The facts often determine how the law is applied and present equitable considerations that counsel in favor of a particular outcome.
Thus, when drafting a trial brief, appellate brief, or pretrial motion, the statement of facts is critical and, arguably, the most important part of your brief. Below are several tips that will help to maximize the persuasive value of your statement of facts.
1. Tell a story
In your statement of facts, do not simply list the facts or describe the facts in a bland or boring manner. Instead, tell a story – and make it interesting. Doing so will capture the reader’s attention and engage the reader in your story. Consider the following examples:
When the plaintiff was terminated, the defendant (the plaintiff’s employer) completely disregarded the relevant terms of the plaintiff’s employment. Furthermore, the defendant made disparaging and insulting remarks to the plaintiff that caused the plaintiff to suffer substantial distress, and that demonstrated the wrongfulness of the termination,
When terminating the plaintiff, the defendant unapologetically stated, “I don’t care what the contract says because I can do what I want and you could never afford a lawyer.” Additionally, the defendant repeatedly berated the plaintiff, calling her “pathetic, a loser, and an embarrassment to the company.” The plaintiff left the defendant’s office in tears, and as she existed, the defendant yelled, “get the f*** out.”
The second example is far more effective. Through the use of specific facts, it shows, rather than tells, the court why you should win.
Of course, when drafting the statement of facts, you should avoid unnecessary adjectives and over-the-top language.
Finally, remember that you do not have to state the facts in chronological order. Although this may be appropriate in some cases, you can – and should – be creative in your organization. For example, if your case involves the breach of a contract, you may want to begin by describing the events constituting the breach and detailing the damages that your client suffered. Simply put, just as some movies begin with the ending, some briefs can too if doing so enhances the persuasive value of your argument.
2. Don’t be argumentative
One of the worst things that you can do in a statement of facts is to argue. First, your facts should be drafted in a manner that makes you appear objective. Doing so will engender credibility with the court. Second, arguing in the facts may lead a court to believe that you are presenting an incomplete or biased version of the facts. Third, and perhaps most importantly, when you argue, you are telling, rather than showing, the court why you should win. No one likes to be told what to do.
3. You can – and should – still advocate
Although you should not argue, you should still advocate. For example, you should emphasize favorable facts over non-favorable facts. You should organize the statement of facts in a manner that highlights the most favorable facts and de-emphasizes unfavorable facts. In so doing, you will be advocating without arguing, and persuading without misleading.
4. Acknowledge unfavorable facts
Be sure to acknowledge unfavorable facts. In so doing, you should rely on other facts to show why the unfavorable facts should not affect the outcome you seek. If you conceal or misrepresent unfavorable facts, your adversary will highlight this error and your credibility with the court will diminish substantially.
5. Eliminate irrelevant facts
You should never include irrelevant facts in your brief. Doing so will undermine the persuasive value of your statement of facts and distract the reader. Consider the following example:
The plaintiff is a private figure and employed as a cashier at Whole Foods Supermarket. On January 11, 2012, while the plaintiff was in the midst of her shift and serving customers, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The plaintiff is a private figure who was born in Austin, Texas. A talented musician and artist, the plaintiff attended the University of Texas for two years before deciding to pursue a career as an actor. The plaintiff enrolled at the Texas Academy of the Arts and completed a twelve-week intensive dramatic acting program. Soon thereafter, the plaintiff auditioned for many roles, including on the well-known soap opera General Hospital and the primetime television show Breaking Bad. During this time, the plaintiff obtained a job at Whole Foods Supermarket to make ends met while auditioning. The plaintiff enjoyed good relationships with her colleagues. Unfortunately, two months after being employed, and during her afternoon shift, the defendant (the store manager) loudly stated that the plaintiff was a “liar, a whore, a criminal, and a disgusting human being.” As a result of these statements, several customers ridiculed the plaintiff and the plaintiff suffered severe emotional distress.
The first example is far more effective than the second. The second example contains facts that are entirely irrelevant to the legal issues (who cares about the plaintiff’s acting career?), and these facts distract the court from the facts that support the relief plaintiff seeks.
6. Describe the record accurately
Always describe the record accurately. If you misrepresent facts in the record, you will immediately – and perhaps irreparably – damage your credibility with the court.
7. You can include law in the facts if it's appropriate
When writing the statement of facts, you can, in appropriate circumstances, include relevant case law or statutory language if doing so would assist the court in resolving the legal issue. For example, assume that your client was arrested on suspicion of driving while intoxicated, and upon arrest, law enforcement, in violation of the U.S. Supreme Court’s holding in Riley v. California, searched your client’s cell phone without a warrant. In your statement of facts, you could – and should – say the following:
On February 20, law enforcement officers stopped the defendant while he was driving home. During the stop, the officers detected the smell of alcohol and subsequently administered a breathalyzer test. The defendant’s blood-alcohol level was .09, in violation of the legal limit of .08, and the defendant was placed under arrest. While under arrest, and over the defendant’s objection, law enforcement conducted a warrantless search of the defendant’s cellular telephone. This search was unlawful because, in Riley v. California, the United States Supreme Court unanimously held that warrantless searches of cellular telephones incident to arrest violate the Fourth Amendment. Accordingly, all evidence seized from the defendant’s cellular telephone should be suppressed.
As you can see from the above example, the U.S. Supreme Court’s decision in Riley is relevant to the legal question and demonstrates that the search was unlawful. Thus, in a situation like this, including the relevant case law will enhance the persuasive value of your argument and demonstrate beyond doubt that the court should grant the relief you seek.
8. It's not just what you say, but how you say it
Be sure to draft a well-written, well-organized, and concise statement of facts. For example:
- Avoid long sentences (over twenty-five words)
- Avoid complex or esoteric words (and Latin)
- Use transition words to ensure flow and clarity
- Avoid unnecessary repetition
- Avoid long paragraphs (paragraphs should be approximately three to five sentences)
- Eliminate unnecessary adjectives and minimize the use of adverbs
- Avoid nominalizations
- Never insult the lower court or your adversary
- Ensure that your brief is free of spelling errors and grammatically correct
- Know when to break the rules to maximize persuasion
Ultimately, the statement of facts is your best opportunity to explain why you should win. Following the above tips will ensure that you avoid the common errors that courts frown upon and that undermine the persuasive value of your brief.
Tuesday, April 14, 2020
Mandamus is, and should be, a rare remedy. Over my years of practice I have filed mandamus less than twenty times in state or federal courts. Yet I have done so three times, and almost a fourth, in just the last six months. As a result, I have had a chance to ponder the unique nature of this remedy and want to offer a few tips if you find yourself having to file this unique "appeal."
In federal court, the All Writs Act (28 U.S.C. § 1651(a)) grants federal appellate courts the power to issue writs of mandamus. Mandamus is intended to be an extraordinary remedy, used only in exceptional circumstances that arise from emergencies or issues of national importance. LaBuy v. Howes Leather Co., 352 U.S. 249 (1957). If there is any other remedy by appeal or award (such as a money judgment for damages) the remedy is not proper.Most state courts have similar jurisdiction and follow the same general rules.
The error challenged must also generally be "clear." This means, in most cases, that only ministerial duties can be challenged. If there is even a hint of discretion in performing the challenged act, mandamus will likely be denied.
In general, the suit is filed against the officer that abused their discretion. You are thus essentially "suing" the judge, clerk, or other official that clearly violated their duty.
Mandamus must also generally be filed quickly. While there is no deadline in most cases, there is a form of laches applied to mandamus by most courts. And mandamus is often used in situations where an injunction or other order has gone into effect or will go into effect in hours or days.
Mandamus thus offers a unique drafting challenge. You must act quickly. In some cases, within hours of the challenged action (or inaction). Yet you must show that the error is clear, and that there is no other remedy than mandamus. And you must provide all of the record information necessary to support the arguments raised, often without benefit of an official record.
This flies in the face of the usual appellate-lawyer temperament. We are, by and large, a careful and deliberate crowd. Mandamus requires us to shoot from the hip, but still hit the target squarely.
To do so, you must be ruthlessly clean and simple in your analysis. String cites, deep-dive analysis, and policy arguments must often be discarded in order to cut to the point. And subsidiary arguments are often discarded in favor of a clean main point.
To make sure that my point is cleanly delivered, I try to focus in on a clean statement of the issue and on headers that deliver the entire argument in themselves. I know that the court is likely to start with the table of contents, so I want that table of contents to deliver the argument well. If there is a subsidiary issue that is not addressed in the headers, it should be cut or relegated to the footnotes.
Every necessary point is also made explicit. I do not leave to chance that any part of my burden for mandamus will be rejected. So the lack of adequate alternative remedies is a header. So is the timeliness of the challenge. And the error is explained with subheaders parsing out each step of the analysis.
If I am seeking emergency relief in addition to the mandamus that requires immediate action by the court, I state this explicitly in the mandamus, near the beginning. I then file the motion for emergency relief with the mandamus, if at all possible, so that the court has full briefing on why the emergency relief is necessary.
Finally, and this is the most challenging part for me, I try to stop editing when the mandamus is "good enough." Because of sharp time constraints, a few maxims should be kept in mind:
- Voltaire: “The best is the enemy of the good.”
- Confucius: "Better a diamond with a flaw than a pebble without."
- Shakespeare: “Striving to better, oft we mar what's well.”
You must edit and clarify with great care. But you also must know when to quit. In a mandamus, this may mean that you only have a few drafts before you must file.
This is the hardest part of a mandamus. You are already somewhat uncomfortable with the idea that you are filing an "extraordinary writ" with so few rules and procedures to guide you. You are probably uncomfortable with the idea of "suing" a judge you may be appearing before again (although you are always carefully challenging the ruling, not the officer). And now, in doing so, you must act quickly and without the comfort of repetitive drafting over time.
But that is the challenge of mandamus. Quick, accurate, and simplified arguments are key. In learning to do so, you may learn to apply those principles to the rest of your work.
Sunday, March 29, 2020
The spread of the coronavirus has resulted in law schools transitioning to online learning. The delivery of legal education online certainly presents challenges for law students and legal writing professors (and professors generally). Below are tips (some rather obvious) that can hopefully contribute to facilitating a reasonably smooth transition to teaching legal writing online, and in a manner that: (1) maximizes students’ attainment of relevant learning outcomes; and (2) creates a supportive learning environment.
1. Be clear about the requirements and expectations going forward
The spread of the coronavirus – and the transition to online legal education – will cause many students to experience increased stress, uncertainty, and anxiety, the severity of which will vary based on each student's circumstances. Indeed, these effects will impact some students more directly and substantially than others.
To facilitate the transition to online education, professors should communicate clearly to students the requirements and expectations regarding assignments and grading, particularly if assignments or grading policies have been modified. For example, many law schools have decided to transition to pass/fail (or credit/no credit) grading for all courses. As such, professors should explain to students the criteria that distinguish passing from failing grades (e.g., a passing grade is the equivalent of a ‘C’ or better).
2. Provide students with writing checklists to make them aware of your grading criteria and to help students edit their work
Professors should consider creating a one or two-page checklist that sets forth the criteria (essentially, the rubric) that they will use when assessing the students’ work. Doing so will enable students to focus their writing and editing on the most relevant aspects of an assignment (e.g., effective topic sentences, proper IRAC structure), and help them to produce their best work.
3. Draft a one or two-page summary each week highlighting the major points of that week's classes
As stated above, the transition to online learning will likely cause many students to experience increased stress and anxiety due to, for example, increased family obligations and financial difficulties. Indeed, students may have less time to devote to their studies or simply struggle to focus on their work, particularly if they are living with family members or home-schooling children. For these and other reasons, students may struggle to complete reading assignments or otherwise dedicate sufficient time to mastering the material.
Drafting a one or two-page summary of the major points covered each week (with examples) will simplify the material and help students focus their attention on the most relevant legal writing skills.
4. Shorten the remaining assignments
In courses where students are required to write, for example, a pre-trial motion, appellate or trial brief, professors should consider shortening their assignments if the circumstances warrant. For example, professors may consider requiring students to write only the legal argument section of a pretrial motion or appellate brief. And professors can consider incorporating smaller, problem-based assessments to focus on areas that may not be required in a summative assessment.
5. Consider reducing or even eliminating the research aspect of an assignment
Some students will have reduced access to internet service and to electronic platforms such as Westlaw, Lexis, and Casetext. As such, professors should consider closed universe assignments that provide students with relevant legal authority.
6. Be as accessible as possible and provide as much feedback as possible
The transition to online learning will significantly impact students’ ability to meet with their professors for individualized feedback and support.
Two approaches may lessen the resulting impact on students. First, professors can hold a few optional classes for the entire class, in which the professor provides generalized feedback on the students’ work and offers suggestions for improvement. Second, professors can, at the outset of online learning, hold 10-minute conferences in which the professor provides support and feedback to each student (based on, for example, prior assignments). And in providing feedback, be mindful that students lack access to some, if not all, of the support services (e.g., a writing center, face-to-face interaction, academic success) that were previously available. This should cause law schools who remain on a grading system to consider adjusting their grading curve upward or permitting students who are particularly disadvantaged the option to take one or more courses on a pass/fail basis.
7. Consider holding online legal writing classes only once per week
This suggestion may not apply to some law schools, but at law schools where legal writing courses are held two or more times per week, professors should consider switching to a once-a-week format. Doing so will enable law professors to devote sufficient time to discussing the relevant material and reduce the burden on students who may struggle to coordinate their schedule in light of personal circumstances.
8. Take ten minutes at the end of each class to show that you care
Certainly, this is a difficult time for law students and law professors. One way to help students is to devote ten or fifteen minutes at the end of each class to simply asking the students how they are doing and encouraging them to share their respective experiences. Doing so will help to create a constructive ad supportive learning environment.
9. Be optimistic and inspire students
Many students will probably rely to some degree on professors and others to provide support during this difficult time. This places professors in a position to offer encouragement, optimism, and inspiration to their students, and to show students that they can succeed despite adverse circumstances.
10. Balance compassion with rigor
Certainly, this is an extraordinary time that requires compassion and understanding for students. At the same time, compassion should be balanced with rigor. Professors should continue to challenge students to put forth their best effort and reward those who produce the highest quality work. Indeed, just as this is a time for compassion, it is also an opportunity to teach students that, no matter what circumstances they may face in life, they must possess the mindset and coping skills to succeed despite adversity.
11. Take care of yourself
Law students and law professors should be particularly mindful of their physical and mental health during this period. Exercise. Eat healthy foods (and junk food in moderation). Practice mindfulness techniques. Communicate with friends and family. Do things that make you happy (listening to Elvis Presley’s music is likely to create substantial happiness) and remember that this, too, shall pass.
Monday, March 16, 2020
Developing excellent legal research and writing skills is essential to becoming a competent attorney. Below are some of the most outstanding resources for law students (and lawyers); these books provide excellent real-world tips on how to become a persuasive legal writer and excellent legal researcher.
Bryan Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, Third Edition (Oxford University Press, 2014)
In The Winning Brief, Bryan Garner offers law students (and lawyers) with practical and real-world tips to maximize the quality and persuasive value of their wring. Garner includes tips on how to organize a brief, capture the reader’s attention, and edit effectively.
Bryan Garner, Legal Writing in Plain English, Second Edition (University of Chicago Press, 2013)
In Legal Writing in Plain English, Bryan Garner uses real-world examples to show students how to write concise, clear, and persuasive prose. Garner also includes valuable exercises and his advice is applicable to a wide variety of legal documents.
Ross Guberman, Point Made: How To Write Like The Nation's Top Advocates, Second Edition (Oxford University Press, 2014)
Ross Guberman’s book is replete with examples of outstanding writing by the country’s top advocates. Using these examples, Guberman provides students with the techniques necessary to draft excellent and persuasive legal documents.
Noah A. Messing, The Art of Advocacy: Briefs, Motions, and Writing Strategies of America's Best Lawyers (Aspen, 2013)
Professor Messing’s book includes numerous examples of excellent writing that are taken from outstanding motions and briefs. The Art of Advocacy focuses on organization, style, and storytelling, and contains annotations that explain to the reader why particular documents are so effective and persuasive.
Mark Osbeck, Impeccable Research, A Concise Guide to Mastering Legal Research Skills (West, 2010)
Professor Osbeck’s book guides students and new attorneys through each step of the research process. Impeccable Research also includes tips on how to avoid common mistakes when researching and discusses how to address specific difficulties that may be encountered in the research process.
Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges (Thompson West, 2008)
In Making Your Case, former Justice Antonin Scalia and Bryan Garner provide invaluable advice to law students and lawyers regarding how to advocate persuasively before a court. The authors discuss, among other things, principles of legal reasoning, briefing, and how to draft an effective argument.
Steven Stark, Writing to Win: The Legal Writer (Three Rivers Press, 2012)
Professor Stark focuses on how to draft persuasive factual narratives and legal arguments, and includes excellent advice on how to draft a variety of real-world documents, such as complaints, answers, trial briefs, and appellate briefs. Additionally, Professor Stark’s book is replete with real-world examples that demonstrate the essence of outstanding writing.
William Strunck, Jr., and E.B. White, The Elements of Style, Fourth Edition (Pearson, 1999)
The Elements of Style shows students and lawyers how to draft clear, concise, and grammatically correct sentences, and is an invaluable resource.
Eric Voight, Legal Research Demystified: A Step-by-Step Approach (Carolina Academic Press, 2019)
Professor Voight provides invaluable instruction that will help students to become outstanding legal researchers. Additionally, Professor Voight includes interactive research exercises that are available on Core Knowledge for Lawyers. Each exercise guides students through the steps identified in the textbook and teaches them to research on Westlaw and Lexis Advance through screen captures and tips.
Richard Wydick and Amy Sloan, Plain English for Lawyers, Sixth Edition (Carolina Academic Press, 2019)
In Plain English for Lawyers, Professors Wydick and Sloan offer valuable tips to help students draft clear, straightforward, and persuasive legal arguments. This includes, but is not limited to, using simple rather than complex words, drafting short sentences, writing in the active voice, and ensuring that a legal document is easy to read.
Of course, this list is not meant to be exhaustive. There are many excellent books that will assist students and lawyers in developing their research and writing skills. The books listed above, however, are among the best and will certainly accomplish this objective.
Tuesday, March 3, 2020
Black’s Law Dictionary defines “Standard of Review” as, “The criterion by which an appellate court exercising appellate jurisdiction measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower court.” But the standard of review is more than that. The applicable standard of review may determine whether a case is appealed and if so, what issues are raised. And the standard of review may determine whether the trial court’s judgment is affirmed or reversed. Judge Patricia Wald of the United States Court of Appeals for the D.C. Circuit has said, “Appellate courts have to decide what the ‘standard of review’ is, and that standard more often than not determines the outcome.” Given the importance of the standard of review, appellate advocates should seek to convince the court to apply the standard of review that is most likely to lead to success for their client.
In any appeal, appellate counsel will spend hours deciding whether to appeal and if so, what issues to raise. Appellate counsel will devote considerable time and resources to researching the substantive law applicable to the case, reviewing the record, and drafting the brief. But how much time do we spend thinking about the standard of review and how we can make the standard of review work for our client? Is the standard of review section of the brief just copied from an earlier brief? If so, are we missing a chance to shape the standard of review and find arguments for a less deferential standard of review (or more deferential standard of review if you’re appellee’s counsel) that might help us win our client’s case? What if we could turn an issue that is, at first blush, reviewed for an abuse of discretion into one the court reviews de novo? That’s what happened in West Branch Local School District Board of Education v. West Branch Education Association.
West Branch involved the non-renewal of a teacher’s contract. The West Branch Local School District Board of Education and the West Branch Education Association were parties to a collective bargaining agreement that included a grievance and arbitration procedure. A grievance was defined as a claim that there had been a violation, misrepresentation, or misapplication of the terms of the collective bargaining agreement.
The collective bargaining agreement also contained a teacher evaluation procedure that superseded the evaluation procedure in the Ohio Revised Code. In April 2013 the school board notified a teacher that it intended to non-renew her teaching contract and gave her a statement of reasons for the non-renewal. The school board gave the teacher a hearing on her non-renewal and then voted to non-renew her teaching contract.
The Association thought the school board had violated, misrepresented, or misapplied the collective bargaining agreement’s teacher evaluation procedures, so it filed a grievance. The school board's superintendent denied the grievance and the association then submitted a request for arbitration. That prompted the school board to file a lawsuit to enjoin the association from going to arbitration. The trial court granted a permanent injunction in favor of the school board. The association appealed the trial court’s judgment.
The issue on appeal in West Branch was whether the trial court erred in granting a permanent injunction--a decision that would generally have been reviewed for an abuse of discretion. The association, however, argued that the court of appeals should review the trial court’s judgment de novo. The association contended that the substantive legal issue that led to the permanent injunction involved the application of the terms of a contract—the collective bargaining agreement. The association said that the terms of the collective bargaining agreement were unambiguous, so the application of the contract was a question of law, and questions of law are reviewed de novo. The court of appeals agreed, reviewed the contract issue de novo, and reversed the trial court’s judgment, a result that would have been unlikely had the court of appeals reviewed the trial court’s judgment for an abuse of discretion.
 Standard of Review, Black's Law Dictionary (11th ed. 2019).
 Timothy J. Storm, The Standard of Review Does Matter: Evidence of Judicial Self-Restraint in the Illinois Appellate Court, 34 S. Ill. U. L. J. 73, 74 (Fall, 2009).
 Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1391 (1995).
 35 N.E.3d 551 (Ohio 7th Dist. Ct. App. 2015).
 Id. at 553.
 Id. at 552.
 Id. at 555.
 Id. at 555-58
 Id. at 552.
 Id. at 553.
 Id. at 554-59.
Friday, February 28, 2020
Every appellate practitioner knows oral argument rarely changes a case outcome. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). However, whether you are a first-year law student, certified appellate specialist, or advocate between those levels of experience, you probably still spend a great deal of time prepping for oral argument. This time can be hard to justify to clients, but an advocate must be prepared for oral argument. See generally Cal. Rules of Ct., R. 1.1, 1.3 (2018).
In my last post, I suggested ways to use off-brief oral argument techniques to improve your brief writing. For this post, I propose using an early, short, oral argument prep before filing the brief as a way to streamline your oral argument preparation while also improving your brief. Using this technique can make your oral argument preparation time more useful, shorter, and easier to justify to clients.
In my advocacy classes, I tell my students to distill their oral argument points to one piece of paper, or something very similar. My “one piece of paper rule” forces students to take the main points from their briefs and organize their arguments in one place. This process requires students, and counsel, to review the briefs and record, reread key cases, and be familiar enough with all aspects of the case to synthesize their points on one page. Along with the paper, I recommend students have one binder with their case charts, all briefs, copies of any key pages from the record, and extra paper for notes during the opponent’s argument. The binder should be tabbed and organized for very quick reference. The process of making the binder is also very useful for both final brief editing and oral argument preparation.
On a practical level, my one piece of paper rule also keeps students from reading from their briefs or reading a longer, prepared statement to the court. Since most courts either ban or strongly disfavor counsel reading from briefs or papers at argument, this is a good lesson to learn early. See, e.g., 5 Am. Jur. 2d Appellate Review § 501 (2d Ed. Feb. 2020). Additionally, an advocate who has organized his or her thoughts well enough to note them on only one piece of paper is unlikely to make the mistake of carting a box of scattered materials to counsel table. One piece of paper is easy to follow under pressure, and can help counsel get back on track smoothly and confidently when the court’s questions move away from main points. Advocates also have an organized binder if they do need to check something quickly.
In content, the one piece of paper should include bullet point arguments on each prong, element, or claim, noting the best points for the advocate’s side. The paper should also have bullet points on counsel’s best responses to his or her opponent’s brief.
I recommend students create their one sheet by first copying over their point headings from the brief Table of Contents. Then, students should take the key points from their Introduction or Summary of Argument, and weave these ideas, all with a focus on their theory of the case and key case law, into bullets under each point heading. I ask my first-year students to make this page before turning in their briefs. I suggest they then use the paper as an editing checklist for the brief. The process of distilling the whole case onto one page can reveal holes in the students’ briefing and help with final brief polishing. Practitioners would reap the same benefit in brief writing from doing an initial oral argument preparation shortly before filing a brief.
In the law school setting, making the oral argument sheet before filing the brief is also efficient. First-year oral arguments come shortly after the brief writing, and students can easily review the one piece of paper they prepared as a brief editing tool and be ready for oral argument.
In practice, however, we often wait months after filing a brief for oral argument. Nonetheless, creating an initial one sheet for argument before filing the brief can still be efficient and helpful in practice. By creating the one page when most familiar with the record and the law, in the midst of brief polishing, counsel can ensure he or she does not miss any key points for later oral argument. Also, while attorneys will still need a refresher on the facts and law before oral argument, following an outline created while drafting the brief will streamline the review process, leading to better preparation in a shorter time. Finally, creating this type of one sheet for the whole appellate case before filing the brief can make final edits of the brief more useful, ensuring the brief is as perfect as possible.
For all of these reasons, consider taking a quick break from your usual brief editing to create one piece of paper for oral argument, or anything similar that works for you, with an organized binder. Doing so can show where you have missed something in briefing and can save time later.
Wednesday, February 19, 2020
Continue Teaching the New Dogs, Old Tricks: The Value of Teaching Appellate Advocacy to Law Students
A majority of U.S. law schools teach persuasive writing and oral advocacy to 1L and 2L students as part of required courses.1 These courses often focus on appellate advocacy. This model has existed for many years, gaining steam especially in the late 1980s after the ABA criticized law schools for failing to properly train law students in appellate advocacy.2 Some law professors and law students question the value of teaching appellate advocacy when we know that many lawyers will not actually engage in writing formal appellate briefs or participate in formal appellate oral arguments during their careers. Through this post I support the continued teaching of the skills required to write an appellate brief and make an appellate argument because the skills taught and tested when doing this kind of work are essential lawyering skills across a wide range of jobs held by lawyers. Lawyers are professional communicators—writing and speaking are essential skills of the profession.
First, writing an appellate brief requires careful, precise, and accurate work. Students must work with and follow procedural and local rules that dictate how to format a particular document, what information must be included, and when and how the document produced must be filed. Students must learn to carefully read a record and research the law to craft legal arguments within parameters set by the rules, including page limits and section requirements that force writers to write and rewrite their work until it is sharp and concise. All of this must be done while the writer is persuasively and accurately explaining to the court why a particular argument has merit when considering the governing law and the facts. The writer must also properly cite the law and the record. These skills are all skills that are valued in the jobs that lawyers hold, from actually working in a litigation setting as an advocate, to advising and counseling clients in a more transactional practice, to working as a judge or a law clerk, just to name a few settings.
Second, oral communication skills are critical for lawyers. While not all lawyers will choose to engage in a litigation-type practice in which arguing to courts is a part of the work, most lawyers will need to “argue” or explain persuasively in their jobs. Appellate advocacy involves presenting arguments as well as responding to questions; it requires advocates to think on their feet. Lawyers who train in the skills of appellate advocacy will develop skills that will transfer to trial advocacy, negotiation, and other tasks requiring effective oral communication. Transactional lawyers will need to discuss positions with clients, orally communicate terms of a deal or a position, and negotiate terms of contracts. Many of the more formal skills required for oral argument will transfer to this transactional work. Even for those lawyers whose jobs do not include a focus on oral presentations, training to skillfully and thoughtfully respond to questions and clearly present legal and factual analysis is training that is an asset to most everyone in any type of legal job.
Third, developing appellate advocacy skills in law schools introduces students to professional and ethical norms that serve to give these burgeoning lawyers a taste of the legal profession and its traditions. Following rules, extending deference in a professional manner to the court, and showing respect for opposing counsel are all norms that should be learned in law schools and carried into the profession. Participating in the ceremony and discourse required in courses that teach appellate advocacy initiate these soon-to-be lawyers and welcome them into the legal community.
In conclusion, let’s continue to teach the new dogs the old tricks. Let’s strive to improve how we do it. Let’s even consider adding to appellate advocacy instruction, instruction and experiences in a variety of written and oral communication settings, like contract negotiation and drafting, trial advocacy, international advocacy, treaty negotiation and drafting, and other areas where lawyers are called upon to use their communication skills. We can value the foundational skills taught and learned through courses in appellate advocacy and supplement legal education with even more experiences that call on students to learn how to communicate effectively.
1 ALWD/LWI Survey 2018, Q. 6.4, https://www.lwionline.org/resources/surveys; Section on Legal Education & Admission to the Bar, Sourcebook on Legal Writing Programs 28, 46 (2006).
2 Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 869 (2006).
February 19, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Law School, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts | Permalink | Comments (0)
Sunday, February 2, 2020
When drafting an appellate brief, your goal should be to produce a well-written document that maximizes the persuasive value of your arguments. In so doing, be sure to avoid the following mistakes.
1. You fail to follow the local court rules
The local court rules typically contain requirements regarding, among other things, the cover of your brief, the word count, spacing, font size, and font type. Failing to follow the local court rules demonstrates a lack of diligence and respect for the court, and undermines the credibility of your arguments.
2. You seek a remedy that is outside of the court’s authority
When drafting your arguments, do not seek a remedy that the court is not authorized to provide (or include information that is not included in the record below).
Consider this example. You represent a state that recently enacted a statute outlawing all abortions and the American Civil Liberties Union challenges the statute’s constitutionality. A district court holds that the statute violates the United States Supreme Court’s decision in Roe v. Wade, which held that the Due Process Clause of the Fourteenth Amendment encompasses a right, in some instances, to terminate a pregnancy.
You decide to appeal the court’s ruling and, in your brief, you argue that Roe v. Wade was wrongly decided, that the appellate court should overrule Roe, and that the statute should be upheld. However, the appellate court lacks the authority to overturn precedent from the U.S. Supreme Court and, as such, your argument will be rejected.
Additionally, you should not make arguments based on facts that are not included in the record below or that were not preserved in the lower court.
3. You overstate the relevance of precedent
Although it is vital to address favorable and unfavorable precedent in your brief, you should never overstate the relevance of favorable precedent. Specifically, do not represent that the facts of a prior case are “strikingly similar” if they are not and do not mischaracterize a prior holding to provide support for your position. The court (and your adversary) will almost certainly notice this error and your credibility, along with your client’s chances of success, will diminish substantially.
Instead, you should explain why precedent, although distinguishable, nonetheless supports the remedy you seek.
4. You are not direct with the court
Appellate judges are extremely busy and read thousands of briefs. Thus, make sure that you present the legal issues and relevant arguments in a direct, understandable, and honest manner. Specifically, at the beginning of your brief, be sure to do the following:
- Identify the errors in the lower court’s decision
- State the remedy that you would like the court to provide
- Explain why you are entitled to this remedy
- Briefly provide the facts and relevant law that support your position
If an appellate court struggles to identify the relevant facts and arguments in your brief, the judges will not view you – or your arguments – favorably.
5. You do not consider the relevant standard of review
Appellate courts decide cases using specific standards of review. For example, appellate courts apply the “abuse of discretion” standard when reviewing factual issues, in which the courts defer substantially to the lower court’s findings. When reviewing legal questions, however, appellate courts apply the “de novo” standard of review, in which the courts give no deference to the lower court’s findings.
Thus, your arguments should be drafted in light of the applicable standard of review, and you should explain in detail and with specificity why your arguments, under the relevant standard, support the relief you seek.
6. You do not organize your brief effectively
Your goal should be to draft a brief that is readable, understandable, and easy to follow. A well-organized brief typically includes the following:
- Headings and subheadings that are rarely, if ever, longer than one sentence
- A roadmap at the beginning of the brief, in which you outline your arguments and state the order in which they will be presented
- Paragraphs that only discuss a single point or issue and that always begin with a topic sentence
If your brief is not organized effectively, you will diminish the persuasive value of your arguments (and you will probably annoy the judges).
7. You file an unnecessarily lengthy brief
Given that appellate judges are very busy and read thousands of briefs, you should make sure that your brief is as concise as possible. Unnecessarily lengthy briefs will likely annoy the judges, distract the judges from the substance of your arguments, and reduce the persuasive value of your brief. Thus, when drafting your brief, be sure to omit excess words, unnecessary facts, and irrelevant legal arguments.
Simply put, less is often more.
8. You make basic writing or stylistic errors
Your brief should not contain errors that cast doubt on the quality of your writing or your competence as an attorney. For example, do not:
- Use over-the-top language (e.g., don’t say “The court’s decision in the prior case made no sense and was utterly devoid of even the semblance of reasoned legal analysis,” or “The defendant’s arguments are ridiculous and not even worthy of a response”)
- Use block quotes unless absolutely necessary
- Include overly long paragraphs
- Repeat arguments
- Use complex or esoteric words
Ultimately, to ensure that your brief is of the highest quality – and avoids these mistakes – be sure to rewrite and edit your brief, and proofread it on paper.
Sunday, January 12, 2020
Excellent legal writers (and writers generally) ensure that their documents adhere to basic rules of grammar and style. Indeed, if an attorney submits a document that contains grammatical or stylistic errors, it will undermine the attorney’s credibility and detract from the persuasive value of the attorney’s arguments.
However, in some circumstances, outstanding legal writers break the rules of grammar and style because doing so increases the persuasive value of a particular document. Below are some of the ways in which breaking the rules of grammar and style will likely enhance the quality of your document.
1. You can end sentences with prepositions
As a general rule, sentences should not end with prepositions. However, in some contexts, adhering to this rule will result in awkward sentences. Consider the following example:
Who are you referring to?
About whom are you referring?
The first sentence ends with a preposition but certainly sounds more natural, which can be particularly effective where, for example, you seek to personalize your client.
Thus, don’t necessarily avoid ending a sentence with a preposition. Instead, determine when, and under what circumstances, violating this rule will enhance the flow and readability of your document.
2. You can write a one-sentence paragraph
Generally, a paragraph should be approximately three to five sentences. It should also include a topic sentence and never occupy an entire page.
In some situations, however, you should break this rule, particularly where you are emphasizing a strong fact or argument that is critical to your case. After all, it should come as no surprise that your audience may not read every word in your document. Thus, using a one-sentence paragraph to emphasize a relevant fact or argument can enhance your prose and the persuasiveness of your document.
3. You can use the passive voice
The conventional rule is that you should write in the active voice. Sometimes, however, using the passive voice is effective, including where you want to de-emphasize facts that are unfavorable to your client. Consider the following example:
The rule was violated.
The Defendant violated the rule.
If you are representing the defendant, wouldn’t you rather use the first sentence to acknowledge that your client violated a rule?
Ultimately, in some circumstances, passive voice can be effective, although it should be used sparingly and mostly when you want to de-emphasize an unfavorable fact.
4. You can use sentence fragments
A complete sentence must include a subject and a verb. Importantly, though, in limited circumstances, using sentence fragments can maximize the persuasiveness of your argument because it is an effective way to emphasize important facts. Consider the following example:
Upon arriving at the crime scene, it was immediately clear that the victim was murdered in a cruel and heinous manner. Bloodied. Dismembered. Fear still in her eyes.
The above example demonstrates how sentence fragments can paint a vivid picture of the underlying events and effectively emphasize important facts.
5. You can start a sentence with “and” or “but” (or other conjunctions)
Generally, you should not begin a sentence with “and” or “but.”
But doing so can be quite effective in some circumstances. For example, beginning a sentence with “and” or “but” can increase the persuasive force of a sentence and enhance the flow of your narrative. Consider the following example.
The defendant claims that the plaintiff’s not entitled to damages. But the defendant signed the contract. And the defendant admits to doing so.
The defendant claims that the plaintiff’s not entitled to damages. However, the defendant signed the contract. Additionally, the defendant admits to doing so.
Which do you prefer? The first example both reads and flows better.
6. You can split infinitives
Some writers – or English teachers – may cringe at the notion that you can split infinitives in your writing. But doing so often makes your writing sound and read better. Consider the following famous phrase:
To boldly go where no man has gone before.
To go boldly where no one has gone before.
The first example sounds and reads better.
7. You can use “you” instead of “one”
Sometimes, it is effective to use “you” instead of “one.” Consider the following example:
If one prefers, one may appeal the committee’s decision within ten days.
You can appeal the committee’s decision within ten days.
The second example sounds better and thus results in more readable prose.
8. You should frequently use profanity and vulgar language in your legal writing
I’m just kidding. Don’t ever do this!
Ultimately, grammar and style rules are vitally important and should be followed in many circumstances. However, rather than rigidly adhering to these rules, pay close attention to how your writing flows and sounds. Consider the context. Consider your audience. Consider what language maximizes the persuasiveness of your argument. And realize that, sometimes, breaking the rules is the key to excellent writing.
Every appellate practitioner and legal skills professor wishes for the time to do one more draft or add one more really creative and engaging exercise. As I like to tell my students, since I am not in charge of the world, I cannot offer more time. However, we can all enhance our written advocacy and teaching by incorporating some aspects of arguing off-brief, a traditional and time-consuming exercise for oral advocacy, into our brief writing and teaching.
In a traditional moot court competition, oral advocates must argue both “sides” of the mock litigation. As Dean Dickerson explains, “[t]his is known as arguing ‘on brief’ and ‘off brief.’ In the first round, the student will represent one side on the issues; in the next, the student will represent the other side on the same issues.” Darby Dickerson, In re Moot Court, 29 Stetson L. Rev. 1217, 1220-21 (2000).
While former Judge Kozinski took issue with off-brief arguments in his oft-cited attack on moot court, In Praise of Moot Court-Not!, 97 Colum. L. Rev. 178, 185 (1997), many scholars praise off-brief arguing for law students in moot court competitions. For example, Professor Vitiello explains: “Students must be able to argue [both] positions because lawyers must be able to anticipate and rebut their opponents’ arguments. A lawyer who lacks that skill cannot adequately represent her clients.” Michael Vitiello, Teaching Effective Oral Argument Skills: Forget About the Drama Coach, 75 Miss. L.J. 869, 898-99 (2006). Similarly, Professor Hernandez reasoned: the “legal profession should encourage any instruction that prepares law students to avoid the temptation to become a mere hired gun in practice. By requiring competitors to argue off-brief and thereby thoroughly analyze all sides of an issue, moot court competitions provide such valuable training.” Michael Hernandez, In Defense Of Moot Court: A Response to “In Praise of Moot Court--Not!”, 17 Rev. Litig. 69, 76-77 (1998).
Moreover, top appellate law firms and appellate departments often hold internal moot courts before particularly important oral arguments, and require attorneys to argue both sides of the case to colleagues serving as mock judges. While “attorneys generally cannot afford to formulate complete arguments for the other side, primarily because of constraints on time and client resources,” this is a wonderful technique when feasible. See id. at 74.
The advantages of off-brief oral argument translate well to written work. Although the scholarly writing in this area focuses on appellate oral advocacy, we all know written briefs carry much more weight than oral argument on appeal. See, e.g., Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 305 (2d ed. 2003). A winning brief, like a good oral argument, must “anticipate points of weakness and . . . take preemptive steps to diffuse the force of opposing arguments” just as an off-brief oral argument teaches. See generally Hernandez, 17 Rev. Litig. at 77.
Thus, as practitioners and teachers, we can do more than simply edit for and generally teach how to incorporate counterarguments into briefs. Instead, we should ask our students, and our brief drafters, to create as much of the argument for the other side, in writing, as budget allows.
For example, in my upper-division legal drafting classes, I often use contract disputes for my final brief projects and ask students, as part of an ungraded assignment, to draft the contract provisions in dispute first to favor their opponent, and then as perfect clauses for their client. Once I added this relatively quick component to the class, I saw the students’ briefs on the contract issues improve dramatically.
In my first-year classes, I similarly ask students to draft arguments for their opponents. I frequently use brief and memo problems from prior years for teaching simulations, to avoid any honor code issues from using a current, graded assignment. Merely asking students to outline or draft bullet points articulating the best arguments for the other side of these past papers can help students see better ways to craft their own graded assignments. Students have shared with me how much they enjoyed being “forced to see the other side” this way. And if you are very short on time, consider holding a quick in-class or law firm lunch-time moot court, with advocates presenting the best arguments for an opposing side, even without much prep time. This exercise can reap large benefits by forcing advocates to acknowledge an opponent’s best points and to draft briefs better refuting those arguments.
Have you used an off-brief technique to enhance your writing or teaching? Feel free to share your ideas in the comments.
Sunday, December 29, 2019
Developing excellent writing skills requires time, practice, and repetition. As Justice Antonin Scalia once stated, “there is an immense difference between writing and good writing,” and “it takes time and sweat to convert the former into the latter.” Indeed, developing excellent writing skills is a lifelong process; those who write effectively enhance the persuasive value of their arguments and maximize their chances of succeeding on the merits. Below are tips that will enable attorneys to quickly and significantly improve the quality of their writing.
1. Eliminate the B.S.
Be sure to eliminate unnecessary words. These words add no persuasive value to your argument and they will likely distract or annoy the reader. Thus, you should eliminate words such as “very,” “entirely,” “only,” “really,” and “actually.”
Also, avoid adverbs, adjectives, and over-the-top language. These words do not enhance the quality of your writing or the strength of your argument. For example, do not say “The defendant ran extremely fast in the store.” Say, “The defendant sprinted into the store.”
2. Outline your argument
Before drafting a brief, outline your arguments, including the relevant facts that support those arguments. Doing so will enable you to assess whether the brief is organized effectively, flows well, and includes the relevant facts and legal principles.
3. Write shorter paragraphs and focus on only one point
When drafting a legal document, such as a memorandum or brief, you should draft short paragraphs (e.g., three to five sentences in length). Long paragraphs can distract the reader and thus fail to keep the reader engaged. Indeed, imagine if you were reading a brief and on every page, you encountered a long paragraph that occupied the entire page. Would you want to keep reading?
Additionally, only discuss one point (or element of a legal argument) in a paragraph, and always begin a paragraph with a topic sentence. Thus, do not include multiple legal arguments (or standards) in a single paragraph because it will disrupt the flow and organization of your argument.
Relatedly, avoid block quotes unless absolutely necessary. Some attorneys reserve block quotes for information that they consider exceedingly persuasive or relevant. However, some judges do not read block quotes, which means that they will skip the passages that you consider most important.
4. Use headings and subheadings
Heading and subheadings enhance the flow and organization of your argument. For example, the four elements of negligence are: (1) duty; (2) breach of duty; (3) direct and proximate causation; and (4) damages. Thus, when drafting, for example, a memorandum, you can organize your analysis as follows:
B. Breach of Duty
1. Direct Causation
2. Proximate Causation
When organized in this manner, your memorandum will flow effectively and the reader will easily follow the logic and flow of your analysis.
5. Write shorter sentences
Shorter sentences engage the reader and keep the reader’s attention. Longer sentences do the opposite. Furthermore, short and direct sentences can effectively emphasize a particularly favorable fact or legal principle. Thus, as a general rule, avoid sentences that are over twenty-five words.
6. Vary sentence length
Varying the length of your sentences keeps the reader’s attention. If your brief consists of excessively long sentences, the reader will likely become bored. And if you include only short sentences, your writing will be choppy and lack flow. Ultimately, therefore, to ensure that your brief flows effectively (and to maximize its persuasive value), vary the length of your sentences.
7. Use transition words to enhance the flow of your document
To ensure that your arguments flow effectively, use transition words such as “Furthermore,” “Moreover,” “Additionally,” and “Also.” Doing so enhances the flow and organization of your argument.
8. Repeatedly re-write and edit your brief, and do so on paper, not a computer
Studies have shown that writers who edit and proofread their work on paper identify more mistakes than those who edit and proofread on a computer.
9. Don’t change tenses
Be sure to write your sentences in the same tense. Consider the following example:
The plaintiff walked out of the door and the defendant strikes the plaintiff, causing severe injuries.
Although there may be circumstances when changing tenses is appropriate, you should, as a general rule, maintain the same tense.
10. Be simple and straightforward
When writing any document, you must consider the audience to whom it is directed. Indeed, the tone, complexity, and style of your writing may change depending on, for example, whether it is directed to a client or court. Regardless of your audience, however, you should always strive to draft legal arguments in a simple, straightforward, and easy-to-understand manner. After all, would you want to read a brief that is riddled with ‘SAT’ or esoteric words, and Latin? Of course not.
11. Use Grammarly or another reputable editing service
Using a reputable editing service, such as Grammarly, can ensure that you identify most, if not all, of the spelling and grammatical errors in your document.
12. Purchase books that serve as quick and effective reference tools
Be sure to consult references that will assist you in adhering to grammar and style rules. Books such as The Elements of Style by Strunk and White, or the Texas Manual of Style, are easily accessible and effective references to ensure that your writing is free of grammatical or stylistic mistakes.
13. Read excellent writing
One of the best ways to become an excellent writer is to read excellent writing. The website below, for example, contains briefs written by the Solicitor General of the United States: https://www.justice.gov/osg/supreme-court-briefs.
 Edward A. Adams, Scalia: Legal Writing Doesn’t Exist (Aug. 9, 2008), available at: http://www.abajournal.com/news/article/scalia_legal_writing_doesnt_exist.
Sunday, December 15, 2019
The most critical factor that influences an attorney’s likelihood of succeeding on appeal is the quality of the appellate brief. Indeed, the appellate brief is, in the vast majority of cases, far more important than oral argument. Thus, drafting a well-written and persuasive appellate brief is essential. Below are tips on how to draft an outstanding appellate brief.
1. Frame the issue to maximize the persuasiveness of your argument
One of the most important aspects of writing an outstanding appellate brief is to frame the issue (or question presented) in a manner that makes the court want to rule in your favor. Of course, when framing the issue, do not be dishonest or hyperbolic. Instead, carefully present the issue so that it supports the remedy you seek. For example, assume that you represent a client who suffered injuries after slipping on ice in the parking lot of a Whole Foods supermarket and the lower court dismissed your case via summary judgment. When drafting the question presented, consider the following examples:
“The case involves whether the Appellee is liable for negligence”
“Is Whole Foods liable for injuries that a customer suffered after slipping on ice that Whole Foods failed to remove from its parking lot?”
The second example is far more persuasive than the first because it includes part of the factual background, particularly that Whole Foods failed to remove a dangerous condition from its parking lost that resulted in injuries to a customer. The first example does nothing but merely present the legal issue without any context whatsoever.
2. Simplify the issue and argument
Regardless of the complexity of a case, attorneys should always try to simplify the issue and arguments for the court, and thus present them in an understandable and relatable manner. Judges (and clerks) are extremely busy; they read many briefs, some of which are quite voluminous, and will appreciate – and thus think favorably of – attorneys who present the issue and arguments in a clear and straightforward manner.
3. Have an outstanding introduction
An outstanding introduction sets the tone for the entire brief. If you impress and persuade the court at the beginning of your brief, you will make an excellent first impression, gain credibility, and enhance the persuasive value of your arguments. To draft an outstanding introduction, include the following:
- Draft a powerful opening sentence that explains why you should prevail
- Tell the court exactly what you want (i.e., the remedy you seek)
- Briefly present the most persuasive facts and legal authority that support your position
- Include a theme that connects all of your arguments
Finally, in the introduction, tell the court what you are going to say in your brief and thus provide the court with a roadmap of your legal argument.
4. Tell a story
Boring briefs, like boring books or movies, will not persuade your audience (the judges). Like everyone else, judges appreciate and will view favorably briefs that use narrative techniques to describe the characters, the setting, and the theme. In so doing, you give context to your arguments, humanize your clients, and provide the court with a realistic portrait of the facts. In other words, don’t simply recite the relevant facts and law. Tell a good story. Otherwise, judges may merely skim your brief. When that happens, your chances of succeeding diminish substantially.
5. Don’t argue the facts (unless absolutely necessary)
Appellate judges defer to the lower court’s factual findings – and for good reason. The lower court is in the best position to evaluate the evidence and make an informed decision regarding the facts. Thus, in your brief, do not argue the facts unless your issue involves a factual determination. But that should be the exception, not the rule. The most successful appellate briefs typically focus on attacking an issue of law, not fact.
6. Know the standard of review
Be sure to know the standard of review that the court will use to decide your case (e.g., abuse of discretion, de novo, clear error). The standard of review is critical because it provides you with the criteria upon which the court will evaluate your arguments, such as the level of deference that will be afforded to the trial court’s findings. As such, your arguments should always be drafted in light of the relevant standard of review.
7. Be honest and acknowledge unfavorable law and facts
Don’t make the mistake of concealing unfavorable law or facts. The court (or its clerks) will find the law or facts that you omitted, and your credibility will diminish substantially when questioned about the omission. Instead, acknowledge unfavorable law or facts and explain why they do not affect the remedy you seek. In so doing, you will garner credibility with the court and have the opportunity to address issues that your adversary will surely raise in the opposing brief.
8. Only present strong legal arguments
Be selective regarding the legal arguments that you include in your brief. Weak arguments detract from the credibility of your brief and the strength of your arguments. Thus, do not “throw in the kitchen sink” and hope that the court will support one of your arguments. For the same reason, be careful about arguing in the alternative. If you do, make sure that your alternative argument is sufficiently strong to merit inclusion in the brief.
9. Write, re-write, and edit your brief
Appellate briefs should be well-written and avoid the common mistakes that are characteristic of poor writing. For example, don’t be repetitive. Avoid block quotes. Eliminate unnecessary words and adjectives. Don’t use over-the-top language, or attack your adversary or the lower court. Avoid long sentences (i.e., those over twenty-five words) and long paragraphs. Delete complex or esoteric words. Be concise. Avoid footnotes. Make sure that your brief is well-organized and flows logically. And remember that, no matter how strong your legal arguments, bad writing will detract from the persuasiveness of those arguments, which can result in losing the appeal.
10. Don’t overwhelm the court with needless legal authority
Be sure not to include unnecessary or repetitive legal authority. Thus, do not include string cites that have little or no persuasive value unless you intend to discuss the facts of those cases and explain why they are relevant. For example, when citing well-settled legal propositions (e.g., the negligence standard), there is no need to cite ten cases. Cite one or two cases and make sure that, in the cases you cite, the courts reached outcomes that are consistent with your position. Additionally, unless your case involves a truly unsettled legal issue, be careful of reasoning by analogy because courts will often easily distinguish cases from a different area of the law. The best approach is to discuss the cases most relevant to your issue and explain why they support the outcome you seek.
11. Don’t use boilerplate conclusions
Make sure that the conclusion of your brief is as powerful as the introduction because you want to leave the court with a favorable impression of your argument. For example, do not simply state, “For the foregoing reasons, the district court’s decision should be reversed.” This says nothing. Instead, in a few sentences, provide the strongest factual and legal bases for granting the relief you seek
12. Put yourself in the adversary’s and court’s shoes
When drafting an appellate brief, attorneys can become so convinced of the merits of their argument that they lose sight of the opposing arguments, unfavorable facts, or competing policies that the adversary and court will likely raise. Consequently, be sure to objectively evaluate your brief. For example, consider how the court might react to your arguments. What questions might it ask? What weaknesses might it find? What legal or policy arguments might it raise? Viewing your brief objectively enables you to find weaknesses in your argument and revise your brief to effectively address those weaknesses.
13. Read great appellate briefs
If you want to become an outstanding brief writer, read excellent briefs before you write. For example, read Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency, which Roberts drafted when he was a partner at Hogan & Hartson, LLP (now Hogan & Lovells). Roberts’s brief is truly outstanding and demonstrates how narrative and persuasive writing techniques can be used to create a cogent legal argument. You can read the brief at the following link: https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf.
Saturday, December 14, 2019
In this season of giving, we have the gifts of two new scathing appellate opinions on poor persuasion and civility to remind us all our courts really want for Christmas (and any holiday) is clear, ethical writing. While we have plenty of past examples of appellate courts taking poor writers to task, in November, we gained two more published opinions building on past decisions and reminding us truly persuasive writing is both straightforward and civil.
The blogosphere has already discussed the November 7, 2019 Seventh Circuit opinion in McCurry v. Kenco Logistics, where the court explained: “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” 942 F.3d 783, 792 (7th Cir. 2019). For a fun review of McCurry listing the many biting phrases the court used, including the new signal “(all errors in original),” see Kevin Underhill’s November 8, 2019 blog. https://loweringthebar.net/2019/11/seventh-circuit-we-draw-the-line-at-gibberish.html.
The McCurry court cited Stanard v. Nygren, 658 F.3d 792, 801–02 (7th Cir. 2011), a Seventh Circuit decision ordering an attorney to should show cause why he should not be disciplined for poor writing and lack of civility. Counsel in Stanard first gained notoriety representing alleged repeat wife-killer Drew Peterson in civil litigation, and faced criticism for his past litigation tactics. See Howard Posner, “Mind Your Grammar,” Cal. Lawyer (Nov. 2012). In Stanard, the court chastised counsel for “Lack of punctuation,” “Near incomprehensibility,” “Failure to follow basic directions,” “Grammatical and syntactical errors,” and incorrect statements of fact and law. 658 F.3d at 797-800. According to Judge Sykes, who also authored McCurry: “At least 23 sentences [in the Stanard brief] contained 100 or more words. This includes sentences of 385, 345, and 291 words.” Stanard, 658 F.3d at 798. Moreover, counsel’s refusal to follow court orders and lack of respect for the trial court hindered his representation of his landowner client in Stanard. Id. at 800-02.
For years, I have used Stanard in appellate advocacy teaching to support the idea truly persuasive writing is accurate and precise. I also use the case to show how lack of civility to the court and others inhibits persuasion.
Now, we can also point students to McCurry, and we have a new case from California expressly saying lack of civility is unpersuasive. On November 22, 2019, the California Court of Appeal issued its opinion in Briganti v. Chow, ___ Cal. App. 4th __, 2019 WL 6242111, *1 (Nov. 22, 2019), and ordered the opinion published “to draw attention to our concluding note on civility, sexism, and persuasive brief writing.” See Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019).
Briganti involved, in part, an anti-SLAPP motion regarding claims based on Facebook posts. 2019 WL 6242111, *2-4. In the trial court, then Superior Court Judge Feuer, now a Court of Appeal Justice, made several rulings for and against defendant Chow, and the Briganti court affirmed those rulings. Id. After discussing the merits, the court added an opinion section titled “A Note on Civility, Sexism, and Persuasive Brief Writing,” explaining: “we would be remiss if we did not also comment on a highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, [in] Chow’s reply brief. We do so not to punish or embarrass, but to take advantage of a teachable moment.” Id. at *4.
This “teachable moment” was a chance to remind us all sexism, in any form, is unprofessional, unpersuasive, and uncivil. Chow’s reply brief began with comments Justice Feuer was “an attractive, hard-working, brilliant, young, politically well-connected judge on a fast track for the California Supreme Court or Federal Bench,” noting “[w]ith due respect, every so often, an attractive, hard-working, brilliant, young, politically well-connected judge can err! Let’s review the errors!” Id. at *4. When questioned at oral argument, Chow’s counsel “stated he intended to compliment the trial judge.” Id. Nevertheless, the appellate court concluded the brief “reflect[ed] gender bias and disrespect for the judicial system.” Id. According to the court: “Calling a woman judge — now an Associate Justice of this court — ‘attractive,’ . . . is inappropriate because it is both irrelevant and sexist. This is true whether intended as a compliment or not. Such comments would not likely have been made about a male judge.” The court cited the California Code of Judicial Ethics, which compels judges to require lawyers “to refrain from” bias based on gender. Id. at *5. As the Briganti court explained, “as judicial officers, we can and should take steps to help reduce incivility,” by “calling gendered incivility out for what it is and insisting it not be repeated.” Id.
The court ended its opinion: “We conclude by extending our thanks to the many talented lawyers whose excellent briefs and scrupulous professionalism make our work product better and our task more enjoyable.” Id According to Briganti, good brief-writing “requires hard work, rigorous analysis, and careful attention to detail.” Thus, while courts “welcome creativity and do not require perfection,” Briganti “simply did not find the peculiar style and content of [Chow’s] brief’s opening paragraph appropriate, helpful, or persuasive.” Id.
Counsel for Chow appears unrepentant, telling the Metropolitan News-Enterprise the court “totally missed the boat on this one, attacking the messenger . . . for using one generally descriptive word ‘attractive’” and exclaiming “Shame on the DCA! Shame on the DCA!” regarding what used to be called the District Court of Appeal. MetNews Staff Writer, “Reference in Brief to Female Judge as ‘Attractive’ Is Sexist: Justice Currey Says Note Is Made of Inappropriateness of Conduct for Instructional Purpose,” http://www.metnews.com/articles/2019/attractive112519.htm (Nov. 25, 2019). While the Briganti court noted the case did not warrant sanctions, the California State Bar has sanctioned Chow’s counsel in the past. Id.
Despite the Briganti counsel’s rejection of the opinion, the rest of us can add Briganti to McCurry and Stanard, among others, on our personal lists of cases reminding us all courts really want is clear, honest writing that helps them reach proper decisions. And for those of us teaching and mentoring new legal writers, these November gifts from appellate courts help us remind young attorneys true persuasion is civil and thoughtful. Happy holidays!
December 14, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)
Tuesday, December 10, 2019
In Portage County Board of Developmental Disabilities v. Portage County Educators' Association for Developmental Disabilities, the Ohio Supreme Court held that a court of appeals should review de novo a trial court judgment confirming, modifying, vacating, or correcting an arbitration award. This case resolved a split among Ohio’s intermediate appellate courts, some of which had held that abuse of discretion was the appropriate standard of review.
But why had the split occurred? What support had the lower courts relied upon to conclude that abuse of discretion was the proper standard of review?
It turns out, there wasn’t any reasoned support for the abuse of discretion standard. The split occurred because courts and advocates had failed to trace the genealogy of the law they were citing or had simply said that abuse of discretion applied without explaining why. This shows the need for both advocates and courts to research the origin of the law being cited to ensure well-reasoned arguments and decisions.
Before the Ohio Supreme Court’s decision in Portage County Board of Developmental Disabilities, three of Ohio’s twelve appellate districts, the Eighth, Tenth, and Twelfth, had held that abuse of discretion was the appropriate standard of review when an appellate court reviewed a trial court’s decision confirming, modifying, vacating, or correcting an arbitration award. So let’s trace the genealogy of the abuse of discretion standard in these three districts.
Ohio’s Eighth District Court of Appeals
Cleveland State University v. Fraternal Order of Police said that abuse of discretion was the appropriate standard of review. The court in Cleveland State cited Citibank, N.A. v. White, which said that abuse of discretion was the appropriate standard but the White court didn’t cite any support for that conclusion or explain why abuse of discretion was the proper standard.
An earlier Eighth District case, Miller v. Management Recruiters International, Inc., had also applied the abuse of discretion. Miller relied on an Eighth District case, Motor Wheel Corporation v. Goodyear Tire & Rubber Co. But the court in Motor Wheel hadn’t said that abuse of discretion applied; instead, Motor Wheel had recognized that the applicable standard of review was unclear, so the Motor Wheel court reviewed the trial court’s decision under both the abuse of discretion standard and the de novo standard.
Ohio’s Tenth District Court of Appeals
In Dodge v. Dodge, Ohio’s Tenth District Court of Appeals said that abuse of discretion was the appropriate standard of review and cited MBNA American Bank, NA v. E. Paul Jones as support. But the E. Paul Jones court didn’t cite any support or explain why it applied the abuse of discretion standard.
The Tenth District also used the abuse of discretion standard in State of Ohio Department of Administrative Services, Office of Collective Bargaining v. Fraternal Order of Police of Ohio, Inc. That case relied on Licking Heights Local School District Board of Education v. Reynoldsburg City School District Board of Education, which in turn cited MBNA American Bank, NA v. E. Paul Jones. The court in Licking Heights, in citing E. Paul Jones, said that E. Paul Jones cited another Tenth District case, Endicott v. Johrent to support the abuse of discretion standard. While E. Paul Jones had cited Endicott, it did not use Endicott to support the abuse of discretion standard. And Endicott did not say that abuse of discretion was the proper standard of review.
Ohio’s Twelve District Court of Appeals
The Twelve District’s adoption of the abuse of discretion standard appears to stem from the decision of the Ohio Eleventh District Court of Appeals in Citigroup Global Markets, Inc. v. Masek. Masek held that abuse of discretion was the correct standard of review and cited an Ohio Sixth District Court of Appeals decision, Herrendeen v. Daimler Chrysler Corp., to support the abuse of discretion standard. But Herrendeen didn’t say that abuse of discretion applied—Herrendeen didn’t even discuss the applicable standard of review.
The Masek court also relied on its earlier decision in Rossi v. Lanmark Homes, Inc. The Rossi court did not explain or cite support for its conclusion that abuse of discretion was the appropriate standard of review.
In Buchholz v. W. Chester Dental Group, the Twelfth District cited the Eleventh District’s decision in Masek to support the abuse of discretion standard of review. In re Hamilton cited Buchholz for the same standard.
These cases show the need to trace the genealogy of the law you are relying on. Doing this will allow advocates to develop arguments to support the continued application of precedent or the overruling of precedent. It will also promote the well-reasoned, consistent application of the law.
 103 N.E. 3d 804 (2018).
 Id. at 805.
 Dodge v. Dodge, 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016), cause dismissed sub nom. In re Hamilton v. Internatl. Union of Operating Engineers, Loc. 20, 150 Ohio St. 3d 1413 (2017), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018); and Cleveland State Univ. v. Fraternal Or. of Police, Ohio Lab. Council, Inc., 50 N.E.3d 285 (Ohio App. 8th Dist. 2015), abrogated by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 103 N.E. 3d 804 (Ohio 2018).
 Cleveland State Univ., 50 N.E. 3d at 289.
 99868, 2014 WL 346740, at *3 (Ohio App. 8th Dist. Jan. 30, 2014).
 906 N.E. 2d 1162 (Ohio App. 8th Dist. 2009).
 Id. at 1166.
 647 N.E. 2d 844 (Ohio App. 8th Dist. 1994).
 Id. at 849.
 95 N.E.3d 820, 822 (Ohio App. 10th Dist. 2017).
 Id. at 826, citing MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *3 (Ohio App. 10th Dist. Dec. 20, 2005).
 MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, (Ohio App. 10th Dist. Dec. 20, 2005).
 89 N.E. 3d 103, 108 (Ohio App. 10th Dist. 2017).
 996 N.E. 2d 1025, 2018 (Ohio App. 10th Dist. 2013).
 Id. (“Typically, our review of a trial court decision to confirm an arbitration award is conducted under the abuse of discretion standard. See MBNA Am. Bank, N.A. v. Jones, 10th Dist. No. 05AP–665, 2005-Ohio-6760, 2005 WL 3485512, ¶ 10, citing Endicott v. Johrendt, 10th Dist. No. 97APE08–1122, 1998 WL 212770 (Apr. 30, 1998).”).
 97APE08-1122, 1998 WL 212770, at *1 (Ohio App. 10th Dist. Apr. 30, 1998).
 MBNA Am. Bank, NA v. E. Paul Jones, 05AP-665, 2005 WL 3485512, at *2 (Ohio App. 10th Dist. Dec. 20, 2005).
 Endicott v. Johrendt, 97APE08-1122, 1998 WL 212770 (Ohio App. 10th Dist. Apr. 30, 1998).
 2006-T-0052, 2007 WL 1395360, at *2 (Ohio App. 11th Dist. May 11, 2007), overruled by Portage County Bd. of Developmental Disabilities v. Portage County Educators' Assn. for Developmental Disabilities, 86 N.E.3d 580 (Ohio App. 11th Dist. 2017).
 L-00-1268, 2001 WL 304843 (Ohio App. 6th Dist. Mar. 30, 2001).
 94-L-046, 1994 WL 738800, at *6 (Ohio App. 11th Dist. Dec. 30, 1994).
 CA2007-11-292, 2008 WL 4541954, at *2 (Ohio App. 12th Dist. Oct. 13, 2008).
 In re Hamilton v. Intl. Union of Operating Engineers, Loc. 20, 69 N.E.3d 1253, 1255 (Ohio App. 12th Dist. 2016).
Monday, December 9, 2019
Does generational theory have any relevance in Appellate Advocacy? Yes, particularly in its teaching. Dr. Corey Seemiller, an expert in generational theory, recently gave her insights on Gen Z, the cohort born between 1996 and 2010, and how they approach advocacy at the Reimagining Advocacy Conference at Stetson University College of Law. The oldest members of Gen Z are now 24, so many current law students are in this group. Dr. Seemiller's keynote kicked off a weekend-long discussion of how to harness the strengths of Gen Z and bolster some of the weaknesses. Whether you work at a law school with these students right now or are a practicing attorney who will soon have Gen Z colleagues, it’s helpful to learn about some of their strengths and challenges as a group. Dr. Seemiller’s presentation gave the conferenceattendees a shared vocabulary. As a caveat, anytime one deals with generational theory, one deals in broad categories, but individuals and personalities vary. Still, I see applications for how I teach students to work as a team, read materials, approach an audience, and prepare for an oral argument.
So what characterizes Gen Z? Among other things, they are curious, honest, kind, and fair. They are diverse. They have experienced a significant amount of vicarious trauma and do not remember a world before Columbine and 9/11. They are motivated by relationships and by what they believe in. They are constantly connected and often addicted to technology; according to Dr. Seemiller they have an average of 8.7 social media accounts. Gen Z students say that they prefer face-to-face communication, but smart phones have been a part of their world since childhood or birth. They may need coaching in how to have live conversations.
Now that Gen Z has officially arrived at law school, and as we try to train them in appellate advocacy, there is a gap between the advocacy methods they have used and appellate advocacy. Over the last few years they may have engaged in twitter wars, used hashtag activism, and witnessed cancel culture. Appellate advocacy in some ways is the polar opposite of hashtag activism and slogans. Professor Mary Beth Beasley identified mastery as the key to appellate advocacy. Mastery takes focus. When we overburden our short term memories with a constant stream of information (like from a smartphone), we diminish our long term memory capacity. Both long term memory and the ability to build connections between a mass of materials are necessary to effectively advocate at the appellate level. Of course, these skills are important to all of us, but Gen Z has never known a time with out smart phones constantly pulling their attention. Many of these students have not learned to read deeply and sustain prolonged focus. We need to find ways to help them pursue and recognized mastery.
We can also try to harness Gen Zs strengths. Hashtag activism requires the ability to boil things down and be concise, which are helpful skills when thinking about theme. These students care deeply about the causes that are important to them. While they may not be patient in the skills development process, once they see the value in a project, they will buy in.
Gen Z is not alone in being constantly connected to technology; most of us are. So as we prepare to teach the next generation of students how to advocate, we need to consider the way that the audience is changing, too, even though there are not yet Gen Z appellate judges. Ultimately, the boiled down, concise persuasion styles Gen Z gravitates to may be helpful to any audience with a shortened attention span. Fortunately, it’s also good writing. But we need to teach students to achieve mastery, think deeply, and make meaningful connections before they start condensing.
Saturday, November 30, 2019
The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?
1. Good amicus briefs make original arguments.
Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?
You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:
Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.
This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?
Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.
2. Attract the Court’s attention at the beginning of the amicus brief.
Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.
Indeed, interviews with former Supreme Court clerks confirm this fact:
To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.
Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.
3. Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).
Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.
4. Use social science data to support your arguments.
Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:
Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.
For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.
5. Focus on specialized areas of the law.
Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”
Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.
6. Remember that your goal is to assist the Court in reaching a fair decision.
Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.
7. Ensure that your writing is of the highest quality.
An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.
Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.
Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.
 Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).
Wednesday, November 27, 2019
Advocates must be keenly aware of which authorities bind the courts to which they are arguing and which authorities will be persuasive to the courts. When the authorities are prior decisions, advocates should also recognize that courts are often interested in hearing how other courts have interpreted and applied the law in similar circumstances. As Professors MacCormick and Summers have explained, “Applying lessons of the past to solve problems of the present or the future is a basic part of human reason.” In many of our day-to-day decisions, we try to act consistently with our prior behavior—to be predictable. Acting in this manner seems fair to everyone and keeps people we deal with content. When we act differently, we call it a surprise, which can be a good thing or a bad thing.
Courts use prior decisions or precedents in much the same way, as models for later decisions. Courts are motivated to correctly and consistently interpret the law and provide some certainty and stability for those parties operating in a jurisdiction. Courts in the United States, including Louisiana (which is a civil law or mixed jurisdiction), as well as courts in jurisdictions around the world, frequently consider prior decisions when interpreting the law, whether they state that they are relying on these decisions or not. Commentators have characterized this reliance on the work and reasoning of earlier judges as a way for courts to “share power across time,” thus democratizing the judiciary and allowing current judges to be assisted by their predecessors. Reliance on precedent helps to ensure stability in the law so that it will not change based on the whim of one or a handful of judges.
Courts around the world consider precedent in varying degrees. We can characterize their reliance on prior decisions or precedent using three basic points on a spectrum: on one end of the spectrum, strict stare decisis; on the other end of the spectrum, jurisprudence constante; and in the middle, a blended version of these two which seems to describe what goes on “in fact” in the United States federal system, in state courts in the United States, including Louisiana, and in many parts of the world.
Strict stare decisis refers to a system of valuing prior decisions as “the law,” binding later courts that face similar issues. Judicial systems that employ strict stare decisis require subordinate courts to follow the decisions of higher courts within a judicial system; sometimes the requirement is to follow the decisions of the higher courts to which the subordinate courts’ decisions are appealable. In some jurisdictions, courts are expected to follow their own decisions as well, with some latitude given. One decision alone is said to make law that must be followed in subsequent cases.
On the other end of the spectrum is a system in which courts may loosely consider prior decisions, but the decisions do not make law. A doctrine such as jurisprudence constante directs courts to consider a long line of consistent interpretations of the law as persuasive and entitled to great weight. These decisions do not bind the court to a particular interpretation of the law, nor do they make law. In fact, in some jurisdictions employing a version of jurisprudence constante, courts are forbidden from citing to a prior decision as the basis for a current decision.
The middle of the spectrum sees a combination of characteristics from those noted above, and it seems to exemplify the model used “in fact” in many jurisdictions worldwide, including the model used in United States jurisdictions.
Moving from the strict stare decisis side of the spectrum, we see examples of courts that render decisions that have the force and effect of law, but that also accept the obligation to review past decisions to ensure that prior interpretations of the law are correct. For example, the United States Supreme Court and other federal and state courts in the United States have valued precedent but have often employed a flexible model of stare decisis. The doctrine of stare decisis, as well as the hierarchical structures of the court systems, typically require the subordinate courts in those jurisdictions to be bound by the decisions of the courts to which the lower courts’ decisions are appealable and require courts to be bound by their own prior decisions. Despite the apparent rigidity of this doctrine, the United States Supreme Court has the express power to overrule its own decisions, as do most of the state supreme courts. Precedent is valued and respected, but American courts recognize that blind adherence to precedent that is not workable, antiquated, or poorly reasoned is a mistake. The United States Supreme Court described this flexibility and the value of precedent in the United States as follows:
Stare decisis is the preferred course, because it promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decision, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right. Nevertheless, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.
American courts have a record of following precedent, but they also have a record of revisiting decisions and the reasoning behind those decisions to ensure that the Constitution or other laws are being properly interpreted and applied. United States Supreme Court Chief Justice Roberts noted that were it not the Court’s practice to revisit precedent when some special justification warrants further review, certain outdated practices and laws might still exist in the United States, such as segregation and government wiretapping without the need for a warrant. He explained, “[S]tare decisis is not an end in itself. It is instead ‘the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.’”
Moving from the other end of the spectrum, where courts do not make law and are not bound by prior decisions, we see courts consider prior decisions when interpreting and applying codified law. In France, Italy, and Spain, as is the case in many other traditional civil law and mixed jurisdictions, prior decisions, especially by reviewing courts, often are very influential and persuasive to subordinate courts, even though they cannot alone provide the authority for a court’s decision. Similarly, Louisiana courts value prior decisions, even though the Louisiana legislature does not recognize judicial decisions as a source of law. The Louisiana Supreme Court has on occasion directed other Louisiana courts to follow its decisions, and the majority of those courts indicate that they consider themselves bound by Louisiana Supreme Court decisions. These decisions are not a source of law, yet as has been recognized in many different jurisdictions, courts are interested to know how other courts have interpreted the law in the past. Add to that the court’s awareness that its decisions will be reviewed by certain higher courts, and logic directs courts, and likewise litigants appearing before them, to consider what has been held in the past in similar circumstances.
 The author has published articles on the value of precedent and a book chapter that addresses the topic. This post draws directly from those publications. See Louisiana Legal Research (Carolina Academic Press 2009, 2d ed. 2013, 3d ed. 2017); Mary Garvey Algero, Considering Precedent in Louisiana: Balancing the Value of Predictable and Certain Interpretation with the Tradition of Flexibility and Adaptability, 57 Loy. L. Rev. 113 (2012), also available in The European Journal of Comparative Law & Governance (Feb. 2014); Mary Garvey Algero, The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation, 65 La. L. Rev. 775 (2005).
. Id. at 2; see also Interpreting Statutes: A Comparative Study 487 (D. Neil MacCormick & Robert S. Summers eds., 1991) (concluding that, together with any applicable statutes, “precedents are the most frequently used materials in judicial opinions,” regardless of whether precedents are considered to have the force of law or not); see also Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 911-12 (2010) (explaining that precedents are to be respected); Borel v. Young, 2007-0419 (La. 11/27/07); 989 So. 2d 42, 65 (emphasizing the value of precedent to maintain certainty and stability in the law); Francesco G. Mazzotta, Precedents in Italian Law, 9 Mich. St. U.-DCL J. Int’l L. 121, 153 (noting that precedents are the most important “justificatory material used in judicial opinions”).
http://www.tex-app.org/articles/HankinsonPrecedent2007.pdf, at 1, 4 (2007) (citing Hon. D. Arthur Kelsey, The Architecture of Judicial Power: Appellate Review and Stare Decisis, Judges’ Journal, at 9-10 (Spring 2006)).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998) (explaining that “[s]tare decisis is the ‘preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)); Mountain View Coach Lines, Inc. v. Storms, 476 N.Y.S.2d 918 (N.Y. App. Di v. 1984) (trial courts in New York are formally bound to follow decisions rendered by New York appellate courts). See also James L. Dennis, Interpretation and Application of the Civil Code and the Evaluation of Judicial Precedent, 54 La. L. Rev. 1, 4-5 (1993); Alvin B. Rubin, Hazards of a Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev. 1369, 1371 (1988).
. See Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents: A Comparative Study 115 (D. Neil MacCormick & Robert S. Summers, eds., 1997) (“There is no formal bindingness of previous judicial decisions in France. One might even argue that there is an opposite rule: that it is forbidden to follow a precedent only because it is a precedent.”); id. at 111-12 (quoting F. Zenati, La Jurisprudence, Paris: Dalloz 102 (1991)) (“[T]he very idea that a judge could search for the base of his decision in a prior judgment is literally unthinkable in a legal system based on statutory Law.’”); Catherine Valcke, Quebec Civil Law and Canadian Federalism, 21 Yale J. Int’l L. 67, 84 (1996) (“A lower court in France has no formal duty to follow a higher tribunal’s decisions, and the highest court, the Cour de cassation, enjoys full power to renounce its own decisions.”). But see Alain Lacabarats, The State of Case Law in France, 51 Loy. L. Rev. 79, 83 (recognizing that even though the decisions of the courts are not binding on other courts, “in practice, courts have a natural tendency to conform spontaneously to the case law of the Cour de cassation, to guarantee citizens a uniform application of the law.”). See also Michele Taruffo & Massimo La Torre, Precedent in Italy, in Interpreting Precedents: A Comparative Study 141, 154 (D. Neil MacCormick & Robert S. Summers eds., 1997) (discussing Italy), and Alfonso Ruiz Miguel & Francisco J. Laporta, Precedent in Spain, in Interpreting Precedents: A Comparative Study 259, 260, 269 (D. Neil MacCormick & Robert S. Summers eds., 1997).
. See, e.g., Hohn v. United States, 524 U.S. 236, 251 (1998). The Court in Hohn further explained that its decisions “remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.” Id. at 252-53. See also Gavin v. Chernoff, 546 F.2d 457, 458-59 (1st Cir. 1976) (invoking stare decisis to follow an earlier opinion when “appellants essential arguments remain much the same as those considered and previously rejected, and there were no compelling new reasons and no change in circumstances justifying reconsideration of the previous decision”).
. Lacabarats, supra note 7, at 83-86 (discussing the value in fact of French decisions); Mazzotta, supra note 3, at 137, 141, 153 (discussing the value in fact of Italian decisions); Miguel & Laporta, supra note 7, at 274-75, 288 (discussing the value in fact of Spanish decisions).
 La. Civ. Code Ann. art. 1 (providing that the sources of law are legislation and custom).
 I have referred to this behavior as “systemic respect for jurisprudence.” Algero, The Sources of Law and the Value of Precedent, supra note 1, at 781.